Widely divergent views have formed in the wake of the Supreme Court’s decision in Association of Molecular Pathology v. Myriad Genetics, Inc., No. 12-398, slip. op. (U.S. Jun. 13, 2013). Some commentators have reacted with dire predictions for the biotech industry, suggesting that the Court’s holding has unduly narrowed patent protection traditionally granted to DNA technology and has disincentivized researchers in the field, particularly those from small start-ups. Other commentators suggest that the Supreme Court’s decision in Myriad willactually benefit genetic research, particularly researchers at the start-up level. The authors of this post tend to agree with this latter view.
The Court’s holding with respect to what constitutes unpatentable DNA subject matter was quite limited. Justice Thomas, writing for the Court, explained that “[w]e merely hold that genes and the information they encode are not patent eligible under § 101 simply because they have been isolated from the surrounding genetic material.” Id. at 18.In other words, a naturally occurring DNA segment does not qualify as patentable subject matter merely by virtue of its “isolation from the remainder of the human genome.” Id. at 1. Despite this limitation, the Court identified and implicated several related areas of technology that would not, as a matter of law, qualify as unpatentable subject matter. Indeed, if read carefully, the opinion actually provides instructions on how to successfully procure patent rights for technologies related to genes that have been identified and isolated.
I wonder what it is about the dawning of Spring that gets people in the mood to clean house. Is it the smell of the blooming flowers that gets a person to finally throw out that old broken chair that’s been sitting in the corner of the garage forever because it’s missing one leg? Or maybe it’s a rainy Saturday that gets people’s cleaning juices flowing.
Whatever the motivation is, one thing is for sure–having the proper tools to make one’s cleaning efforts worthwhile is essential. Perhaps these four patents and one patent application will do the trick.
In order to clean, it is imperative that you have an effective cleaning tool that will get the job done, and inventor Johann Zita believes that a bendable cleaning device and system is just the ticket to get rid of all that dust that seems to pile up on top of our kitchen cabinets and bookcases. Sure, there are all kinds of dusters currently on the market that will do a decent job of getting the dust off of those fragile pieces of crystal that you’ve been keeping on display on a shelf in the living room. But what about the top of the refrigerator (which everyone seems to forget about) or the top of the curio that everyone walks by and barely touches? Those items require something a bit stiffer and more adjustable than your typical feather duster. That’s where Zita’s cleaning device and system comes in. The invention is a duster that comes with a handle and a bendable duster portion that will make reaching those hard-to-reach spots more manageable. The user can shape the duster portion of the unit to whatever angle they so desire, and when the cleaning is done, the duster can be put back into its original position with ease. So say bye-bye to those dust bunnies that have been living on top of your refrigerator!
The latest round of what seems to be a never-ending trademark battle between the United States Polo Association (USPA) and PRL USA Holdings, Inc. (referred to here as Ralph Lauren) has ended with Ralph Lauren emerging victorious over the polo association. Judges Reena Raggi, Peter Hall and Christopher Droney, all with the 2nd US Circuit Court of Appeals, recently issued an unsigned opinion finding that the USPA could, in fact, be banned from using a double horseman logo on its fragrances or cosmetics on the basis that the logo was too similar to trademarks currently owned by Ralph Lauren and such use constituted unfair competition.
On Friday March 1, 2013 Judge Lucy Koh handed down her decision regarding various motions that were filed on behalf of Apple Inc. (“Apple”) and Samsung Electronics Co. (“Samsung”) over the past few months post-trial. Specifically, Apple requested additur, supplemental damages, and prejudgment interest, while Samsung moved for a new trial on damages or remittitur. Judge Koh determined that the “Court has identified an impermissible legal theory on which the jury based its award, and cannot reasonably calculate the amount of excess while effectuating the intent of the jury.” The total amount stricken from the jury’s award was $450,514,650 –pending a new trial on damages. The jury awards stands for the remaining 14 products for a total of $598,908,892 in favor of Apple.
Post-trial, Apple requested the Court to increase its damages award for five products because the jury gave an award less than what was calculated by Samsung’s damages expert. However, the Court pointed out that “Apple provide[d] no authority for the argument that the Court should not consider the jury’s specific findings.” Moreover, the Court stated that by doing so would be to violate the longstanding rule that the Seventh Amendment prohibits a judicial increase in a damages award made by a jury. See Dimick v. Scheidt, 293 U.S. 474, 486-87 (1935). Although Apple contends that this rule does not apply in this current case because there is no dispute about the proper amount of damages, the Court quickly and swiftly disagreed. In fact, the Court points out that “[t]he amount of damages is heavily disputed here, as evidenced by extensive testimony provided by both parties concerning the proper amount of compensation.” Additionally, the jury was not bound by either side’s damages testimony and therefore free to evaluate the testimony of both sides’ experts in arriving at its award. The Court denied Apple’s motion for an increase in the jury’s damages.
First make sure you’re right, then go ahead. ~ Davy Crockett
“The Fall of the Alamo” by Robert Jenkins Onderdonk, 1903.
(Adapted from my talk to the Association of University Technology Managers Annual Meeting in San Antonio, Texas. The meeting coincided with the anniversary of the siege of the Alamo which fell on March 6, 1836.)
The ancient Chinese saying: “May you live in interesting times” was meant as a curse. Well folks, we live in interesting times. We need to recognize it, roll up our sleeves, and get to work. If my parent’s generation could survive the Depression, fight and win World War II, and come home to build the most prosperous nation in history, surely we can meet our tests.
If you’re paying attention at all, you must have noticed that there are forces out there who just don’t like what you do. Some say you’re too focused on making money, some say you’re not focused enough (we really should introduce these folks to each other), some don’t believe it’s moral for universities to work with industry, and many have built very successful careers launching attack after attack on Bayh-Dole and the very patent system itself.
The Patent Office should be estopped from raising a § 112 (a) rejection after raising a § 102 or § 103 rejection in an earlier office action. 35 U.S.C. § 112 (a) states:
The specification shall contain a written description of the invention, and of the manner and process of making and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same, and shall set forth the best mode contemplated by the inventor or joint inventor of carrying out the invention
Logically, if the application does not describe an invention in terms that allows one skilled in the art to make and use it, then the Patent Office should not have sufficient information to suggest that the application is not novel or obvious. In order to determine something is not novel or obvious you first have to know what it is. I have no objection to the Patent Office putting a 35 U.S.C. § 112 (a) and novelty/obviousness rejection in the same Office Action, where the PTO explains that to the best of their understanding of the invention it would not be novel or obvious for the following reasons.
With only 11 patent applications published last week by the U.S. Patent & Trademark Office, this marks a meager week for Apple Inc. Of the patent applications published by the USPTO, three are interrelated applications for managing access to rights-protected digital media. Other patent applications pertain to improvements to internal computer systems, including temperature control and serial bus connectivity.
Digital rights management, or DRM, has long been a major concern among computer systems manufacturers. The pervasiveness of digital media content, and the ease with which media files can be shared among computers, has made it difficult to adequately compensate media creators for their digital products. In some cases, computer developers have created DRM software that restricts access to a single user.
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