Critics argue that pharmaceutical patents are a barrier to wide-reaching access to medicines, especially for vulnerable populations in the developing world.  They cast their argument in the phrase, “Patents Kill” and advocate against intellectual property (IP) protection for medical innovation and the trade agreements that incorporate them.  Their position, however, begs the question of what truly influences a population’s access to medicines.  This week, as the United States and a dozen other nations continue the Trans-Pacific Partnership (TPP) Agreement negotiations, the answer is more important than ever.  Despite the critics’ position, recent students cast doubt on their argument, providing evidence that access is critically linked to a country’s level of economic development which is enhanced by strong intellectual property rights protection.

Access is defined as “having medicines continuously available and affordable at public or private health facilities or medicine outlets that are within one hour’s walk from the homes of the population” (United Nations Development Group, 2003).  Fundamentally, access is largely continent upon the nation’s level of economic development and available infrastructure.  Given this, there are two important reasons to believe that the TPP will not inhibit access to medicine.  First, most would-be signatory nations are well developed.  Second, trade and IP protection enhance growth and growth furthers access.

Once again, a plethora of interesting events has occurred since the last time we stopped by. What was the biggest headline? That decision may be up for grabs, but certainly, the $500 million penalty paid by Ranbaxy Laboratories is high on the list. The generic drug maker ponied up to settle criminal and civil charges stemming from a long-running manufacturing failure and cover-up scheme.

The US Justice Department called this the largest “financial” penalty paid by a generic drugmaker for violating the Food, Drug & Cosmetic Act. Ranbaxy pleaded guilty to seven felony counts, including three for making false statements to the FDA; paid a $120 million criminal fine and forfeited $20 million. Another $350 million was paid for causing federal healthcare programs to overpay for various drugs.

For those who may not recall, Ranbaxy used raw chemicals from unapproved sources, fabricated in-house test data to meet FDA standards and concealed these activities from FDA inspectors by falsifying records. These infractions went on for several years, mostly at two plants in India, but also involved senior management there and in the US.

The Samsung Group of Seoul, South Korea, is a major international conglomerate involved in almost every industry. Here at IPWatchdog, we occasionally take a look at some of the recent technology patents and filed applications coming from this industry behemoth. For our complete series see Companies We Follow.

Over the past few years, electronic devices have become a staple for Samsung’s main subsidiary, Samsung Electronics. That subsidiary is a major standard bearer for the mobile device industry, and even recently announced plans to release consumer electronics on the 5G network as early as 2020, according to Forbes. This focus on technological research and development makes this international firm a common name at the U.S. Patent & Trademark Office.

Patent applications published by the USPTO recently and assigned to Samsung show the wide scope of the electronic developer’s operations. Different applications protect more space-efficient surgical robotic arms, a component device for video playback of broadcasts from different global regions and more precise systems of infrared 3D location sensing.

A few documents pertain directly to mobile consumer devices developed by the South Korean conglomerate. A fourth patent application covered here describes an enhanced system of analyzing touch gestures when reading e-books. A legal patent has also been awarded to Samsung for the protection of a hydrogen generating apparatus for powering fuel cells in electronic devices.

In the case of Bowman v. Monsanto Co., Farmer Bowman may have believed that the “third time” would be “charm.”  In two prior cases, Monsanto Co. v. Scruggs[1] and Monsanto Co. v. McFarling,[2] the Federal Circuit had ruled in favor of Monsanto, the owner of the patented Roundup Ready^® soybeans, and against Farmer Scruggs and Farmer McFarling.  Even so, Farmer Bowman, as probably did his legal counsel, may have believed that the Supreme Court’s 2008 decision in Quanta Computer, Inc. v. LG Electronics, Inc.[3] would undermine the Federal Circuit’s view that patent exhaustion didn’t apply to Monsanto’s patented Roundup Ready^® soybeans.  But in a unanimous decision, the Supreme Court affirmed the Federal Circuit’s 2011 ruling[4] that Farmer Bowman’s unlicensed planting of these patented Roundup Ready^® soybeans (sold for commodity use only) was an infringing use that was not subject to the doctrine of patent exhaustion.  Alas, Farmer Bowman found no solace in Quanta.

To understand the ruling in Bowman, you must first understand Monsanto’s patented Roundup Ready^® soybean technology, its Technology Agreement with purchaser’s of those soybeans delineating the licensed use thereof, as well as the fairly complex fact situation of Farmer Bowman’s use (or more appropriately wily misuse) of the “commodity” soybeans he purchased from a local grain elevator and subsequently planted for the express purpose of harvesting the resulting seed.[5]  Monsanto’s patented technology involved genetically modified soybeans that exhibited resistance to N-phosphonomethylglycine-based herbicides (commonly known as “glyphosate” or “glyphos”), such as Monsanto’s Roundup^® herbicide product.  These genetically modified soybeans were known as Roundup Ready^® soybeans because of their resistance to such herbicides.

Vernon Bowman is a 75-year-old, recently bankrupt small farmer in Indiana. Monsanto is a multinational corporation that is revered in the industry for its innovations in the field of genetically modified seed technologies, but equally reviled in the American heartland for its staunch protection and ruthless enforcement of its patent rights against small farmers. In a unanimous decision, the Supreme Court sided with Monsanto in finding that Bowman had infringed Monsanto’s patents on genetically altered soybean seeds. This would translate into tens of thousands of dollars in liability for the small farmer. Those reacting purely emotionally to the story will be inclined to sympathize with the small farmer. And recalling Steinbeck’s Grapes of Wrath, they would lament, “The small farmer was weary and frightened because he had gone against a system he did not understand and it had beaten him.” However, the Court’s decision is merely a classical application of basic patent principles.

For years, Vernon Bowman purchased Roundup Ready® soybean seeds from a Monsanto affiliate each year for his main crop of the season. The purchase required Bowman’s assent to a licensing agreement, which prohibited Bowman from saving any of the seeds for replanting. For his late-season second crop, however, Bowman would attempt to skirt Monsanto’s licensing agreement and instead purchase commodity soybean seeds from a grain elevator. The commodity soybean seeds are normally tagged for human or animal consumption only. Anticipating that a batch of commodity soybean seeds would surely contain some Roundup Ready® seeds, Bowman planted the seeds, applied Roundup herbicide to his fields, selectively recovered soybeans exhibiting the Roundup Ready® trait, and saved those seeds for further plantings. Bowman harvested eight late-season crops in this way.

Dr. Phil McGraw’s company, Peteski Productions (Peteski), recently filed a lawsuit against Gawker Media (Gawker) for copyright infringement. It appears that Deadspin.com (Deadspin), which is owned by Gawker Media, posted portions of the doctor’s exclusive interview with the man behind the Manti Te’o girlfriend hoax online before the show actually aired in various parts of the country.

Deadspin originally broke the story, including the hoaxster’s catfishing scheme; however Dr. Phil was given an exclusive interview with hoaxster, Ronaiah Tuiasosopo. Dr. Phil’s interview with Tuiasosopo was a two-part episode, with a cliff-hanging first episode. But Deadspin took away Dr. Phil’s thunder (and seemingly lowered his ratings) by showing the “answer” to the cliffhanger online prior to Dr. Phil airing in most markets.

Chief Judge Rader’s band De Novo should play a dirge tonight.

On May 10, the Federal Circuit issued its en banc opinion in CLS Bank.  Within 48 hours, I had twice read the 135 page decision.  It may be a bullet to the head of the software industry.  Don’t take my word for it:  four different judges say so:

And let’s be clear: if all of these claims, including the system claims, are not patent-eligible, this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents. If all of the claims of these four patents are ineligible, so too are the 320,799 patents which were granted from 1998-2011 in the technology area “Electrical Computers, Digital Processing Systems, Information Security, Error/Fault Handling.” Every patent in this technology category covers inventions directed to computer software or to hardware that implements software. In 2011 alone, 42,235 patents were granted in this area. This would render ineligible nearly 20% of all the patents that actually issued in 2011. If the reasoning of Judge Lourie’s opinion were adopted, it would decimate the electronics and software industries. There are, of course, software, financial system, business method and telecom patents in other technology classes which would also be at risk. So this is quite frankly a low estimate. There has never been a case which could do more damage to the patent system than this one.[1]

That parade of horribles is not entirely fair to Judge Lourie’s concurrence.  Judge Lourie based his opinion on the fact that the disputed patent is directed not just to electronics, but to an insignificant use of modern electronics to implement an arguably basic financial transaction.  I doubt that Judge Lourie would expand the holding in CLS Bank far beyond that specific fact pattern.  Nevertheless, as quoted above, the dissenting judges do not share even this much optimism.

After the Federal Circuit issued its en banc decision on May 10, 2013 in CLS Bank v. Alice Corp, the patent owner Alice Corp must be feeling like Alice in Alice in Wonderland, bewildered and frightened by the fantastical situation in which they find themselves:

(1) “bewildered” because an equally divided Federal Circuit affirmed the district court’s holding that Alice’s claimed system to tangible machine components including a first party device, a data storage unit, a second party device, a computer, and a communications controller, programmed with specialized functions consistent with detailed algorithms disclosed in the patent, constitutes a patent ineligible “abstract idea;”

(2) “frightened” because, as Judge Moore puts it, “this case is the death of hundreds of thousands of patents, including all business method, financial system, and software patents as well as many computer implemented and telecommunications patents” (Moore Op. at 2); and

One month after our last check into Oracle Corporation, IPWatchdog is back to see how the database management system developer has been faring at the U.S. Patent & Trademark Office. Along with database management, the technology developer is also involved with the innovation of enterprise resource planning, supply chain management and customer relationship software.

Many of the recent patent applications filed by Oracle and published by the USPTO showcase the company’s focus on providing software business solutions. These patent applications seek protections for improvements to enterprise software, including voice control and more efficient upgrades for enterprise planning and management software. Another application lays out a system of smart allocation for resources within a supply chain.

Oracle is also involved with efficiency upgrades to enterprise software, especially those that would benefit small businesses. Another patent application filed by Oracle would improve the reaction time for queries registered within a Model-View-Controller online database application. An official patent awarded to Oracle this month provides a better deployment model for small firms who manufacture and sell software applications.

One of the central policy issues injected into the current case of AMP v. Myriad Genetics is whether the BRCA patents are good for innovation and ultimately for patients.  Specifically, ACLU and PubPat allege that the patents have hindered research, blocked innovation, and harmed patient access to BRCA testing.  No matter how many times these allegations are repeated, all available evidence shows concerns over research and innovation to be unfounded.  More importantly, two natural experiments give us an opportunity to evaluate actual patient access to testing, the ultimate measure of whether the patents are doing their job of incentivizing delivery of new technology to the public.  Both of these experiments show that exclusive licensing of strong “gene patents” not only does not harm patient access to quality testing, but is instead vital to it.

In the impassioned words of Linda Bruzzone, a Lynch syndrome mutation carrier and head of Lynch Syndrome International:  “Many of us with Lynch Syndrome wish there had been a patent in place for us. It would have protected us and perhaps protected the lives of our loved ones.”  L. Bruzzone, Oral Comments at USPTO Public Roundtable on Genetic Diagnostic Testing (January 10, 2013).

International Business Machines Corporation of Armonk, NY, is a technology development and consultant agency that provides information technology for business solutions. IBM is a huge player in the world of technology research and development, and the company currently has the distinction of being awarded the most U.S. patents every year for the past 20 years, according to business publication Bloomberg. These factors make IBM a major focus for IPWatchdog, as we continue our regular series of following U.S. Patent & Trademark Office publications regarding American technology firms. See Companies We Follow. 

Within the past month, many IBM patent applications published by the USPTO show a desire to improve multimedia experiences on many computer devices. Patent applications filed by IBM include systems for improving secure access of licensed content and another providing a more viewer-responsive experience for watching live events.

IBM is still heavily involved with the development of business applications for computer systems. To that end, the company has filed patent applications for a system of capturing the workflow process of an employee accessing project software. Another application creates a visualization of temporal event data to aid in medical diagnostic processes. One official patent awarded to IBM protects a system of providing feedback to publishers from their subscribers.

Complete file histories courtesy of The Patent Box.

Microsoft Corporation, headquartered in Redmond, WA, is an American leader in developing and manufacturing computer services products, including Microsoft Office document software suites and Microsoft Windows operating systems. As a leader in the computer services market, Microsoft is a regular each week at the U.S. Patent & Trademark Office. This week, we return to see what the Washington State-based technology juggernaut has been up to lately.

As always, many patent applications show Microsoft’s focus on improving their software for business applications. Different Microsoft patent applications this week provide for systems of sharing meeting notes within office software, mapping identities to keep important business documents secure as well as using serious games to identify talent within an organization.

Other USPTO documents of note show that the computer developer is also trying to reach beyond this market. Another patent application would protect a system of creating digital memorabilia for events. Also, one patent awarded to Microsoft protects a system of identifying different users on a touchscreen.

Complete file histories courtesy of The Patent Box.

Design patents have been making the news.  Last summer, Apple’s $1.05 billion verdict against Samsung was famously based, in part, on the finding that Samsung infringed Apple’s rounded-rectangle and edge-to-edge glass designs.  Since then, Yamaha, Thule, Oakley, Nike and Spanx, to name just a few, have litigated in the U.S. over the design of headphones, ski racks, sunglasses, footwear and women’s undergarments.  And just last month, former head of the USPTO, David Kappos, published an OpEd piece describing design as “the new frontier of intellectual property.”

Nothing has fundamentally changed about the nature of design patents.  The first US design patent was granted in 1842.  The Statue of Liberty, Coke bottle, Volkswagen Beatle, Stealth Bomber and Star Wars’ Yoda are all protected by design patents.  Design patents have long played an important role in consumer electronics, automotive, apparel, jewelry, packaging and other industries.

But industrial design is becoming increasingly important, Mr. Kappos explains, because the increasing functionality of man-made devices brings with it increasing complexity, so innovative companies are constantly seeking superior designs, a convergence of form and function that helps make the complex simple and sets their companies apart; and protecting such designs is critical.

The National Press Photographers Association (NPPA) recently announced that it is joining the other cast of characters who have filed a class action complaint against Google, claiming (as the other plaintiffs have) that Google’s “Google Book Search” program violates the copyrights of several photographers and visual artists. The other plaintiffs include individuals Leif Skoogfors, Al Satterwhite, Morton Beebe, Ed Kashi, John Schmelzer, Simms Taback and Gail Kuenstler Living Trust, Leland Bobbe, John Francis Ficara and David Moser, and associations The American Society of Media Photographers, the Graphic Artists Guild, the Picture Archive Council of America, the North American Nature Photography Association, the Professional Photographers of America, and American Photographic Artists.

So what brought on this class action suit in the first place?  Well, it would seem that whenever someone conducts a search using the Google Books program, that search brings up images that are contained in both books and periodicals–images that are copyright protected. And apparently, this isn’t the first time Google Books has been under fire in litigation–even the writers of some of the books and periodicals that come up when using the search have also claimed copyright infringement.

Saeilo Enterprises, Inc. (Saeilo), current maker of the Thompson machine gun, sometimes referred to as a “Tommy gun,” recently filed a lawsuit claiming trademark infringement against liquor company, Alphonse Capone Enterprises, Inc. (Capone).  At issue is the fact that Capone has been selling a new brand of vodka under the Tommy Guns name in a 19-inch bottle that is shaped like a Tommy gun.

In 1994, Kahr Arms (Kahr), a division of Saeilo Enterprises, Inc., was formed and five years later in 1999, Kahr bought Auto-Ordinance, the original manufacturer of the well-known Tommy Gun firearm. Additionally, Saeilo also owns the TOMMY GUN trademark for firearms, and the trademark has been used constantly since 1920.  The company is also the owner of a separate TOMMY GUN trademark that covers clothing.

The Complaint

The complaint, which was filed in Illinois, specifically alleges that Capone, an Illinois corporation, did not have authorization to use the Tommy Gun trademarks on alcoholic beverages that carry a reproduction of the Tommy Gun marks. Additionally, Saeilo claims that Capone’s infringement not only violates federal trademark law, but also Illinois state law and common law.