October 30, 2010
Putting Genes On
In May 2009, the ACLU and PUBPAT filed suit to overturn DNA patents: claims to both isolated DNA and methods of isolating DNA. In March 2010, NY Southern District Judge Sweet soured on isolated DNA as unpatentable subject matter under 35 U.S.C. §101. Billions at stake, hopping-hot corporate toads and "pity the patient" poobahs have pummeled the CAFC with amici briefs, for what is referred to as the Myriad matter - Myriad Genetics is the owner of the target patents. Now the Department of Justice (DOJ) has weighed in, against the patent office, which granted the target patents.
October 22, 2010
China, historically notorious for intellectual property theft, didn't have any law on patents until 1985. The dragon has turned: the Chinese government is now anxious to promote domestic innovation. The way things are going, China will soon be the world's top patent generator, maybe as early as next year. But that hype is bunk for junk. Like the USPTO, China's patent office is paid by patent grant, and so there is a built-in incentive to ladle junk patents. China's two-tiered patent system guarantees it.
October 14, 2010
Richard F. Schwemberger filed an application for a surgical stapler which the patent office found an obvious combination of two prior art references. We're talking pre-KSR obvious (not that the PTO or CAFC bothered with such legal finesse). Which makes Schwemberger not exactly patent savvy. Rather than advise reality, Howard N. Flaxman of Welsh & Flaxman pocketed Schwemberger's hard-earned for appeal of a hopeless case. In a lot of ways, this is not unusual. But it is a good cautionary tale.
October 13, 2010
The Invention Zone
6,730,817 claims a process for making a refrigerant gas that won't deplete atmospheric ozone and turn Earth into more of a baking oven than humans are busy otherwise doing. Owner Solvay sued Honeywell for infringing '817. For their pains, Solvay had some asserted claims found infringed, but "invalid under 35 U.S.C. § 102(g)(2) because Honeywell was a prior inventor." Appeal got the invalidity ozone depleted from district court summary judgment.
October 6, 2010
The 1984 Hatch-Waxman Act created a path for generic drug companies to line up for manufacture of drugs coming off patent. Teva tried to jump the line for donepezil, an Alzheimer treatment drug, from Eisai, who was first in line for permission to make a generic version. Teva did this by filing a DJ of noninfringement. The district court dismissed, citing lack of jurisdiction, figuring no actual controversy between Eisai and Teva. The CAFC reversed and remanded. Teva v. Eisai (CAFC 2009-1593) is essential reading, in its entirety, for those interested in the intricacies of the drug patent game, as this precedential ruling changes the game, albeit in a nuanced way.
October 3, 2010
Ordinary & Extreme
The childishness of corporations is no better illustrated than in patent litigation, where, instead of coming to cross-license, the little boys fight it out in court. For their fat fees, lawyers egg this sort of thing on. So it was with Extreme Networks and Enterasys. Then again, what would you expect of a company whose imagination runs so vacant as to name itself "extreme." In this battle, Enterasys held the short straw at district court: asserted 5,195,181 & 5,430,727 were found not infringed in summary judgment. Enterasys's expert excluded from testifying was salt in the wound. Appeal was but slight relief from the grief.