Archive for March, 2011

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One Step Towards an EJC Decision on the Patentability of Embryonic Stem Cells in Europe

Thursday, March 31st, 2011

The following is a contribution from Verena Simpson PhD of Zacco Denmark A/S.

On the 10 March 2011, the Advocates General of the European Court of Justice [ECJ] gave an opinion on the interpretation of Article 6(2)(c) of the Directive 98/44/EC. This opinion concerns the patentability of embryonic stem cells, as summarized below:

  • The concept of the human embryo starts from the fertilized embryo and extends through to the development of the human body. Manipulation of an unfertilized human ovum that results in a totipotent cell(s) capable of developing into a human is also to be considered a human embryo.
  • Pluripotent embryonic stem cells do not themselves have the capacity to develop into a human being, and on these grounds are not included within the meaning of “the concept of the human embryo”;
  • However, not only “the use of human embryos for industrial or commercial purposes” must be excluded from patentability, but also inventions whose practise necessitates the prior destruction of human embryos or their use as starting material must be excluded from patentability.

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Banning Stem Cell Research — Or Cloning? Or Both?

Wednesday, March 30th, 2011

A front-page article in the Minneapolis StarTribune entitled “Stakes High In Cloning Debate” (March 30, 2011) discusses a bill recently introduced into the Minnesota legislature to criminalize “human cloning.” The article reflects on the confusion surrounding what it is, exactly, that groups like “Minnesota Citizens Concerned for Life” want to ban. Put another way, they think they know what they want to ban, but they don’t know how to describe the science they are demonizing. For example:

“In adult stem cell research money is flowing like a river,” Scott Fischbach said, “[In contrast], money going into embryonic stem cell research is resulting in nothing but dead embryos.”

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Microsoft V. i4i – Prosecution And The “Variable Proof Regime”

Friday, March 25th, 2011

The Government recently weighed in on this important appeal with its amicus brief, signed by Neal Katyal, Acting Solicitor General. (A copy can be found at the end of this post.) The question posed is simply: “Whether, when the defendant [here Petitioner i4i] in an infringement suit asserts as a defense that the relevant patent is invalid, the defendant must prove invalidity by clear and convincing evidence.”

The major portion of the brief argues “clearly and convincingly” that both precedent and legislative history compel a finding that the clear and convincing (C&C) standard is the appropriate burden of proof for the defendant to meet, even when the defendant introduces evidence of invalidity that was not before the PTO during the examination process – even though the new evidence may “carry more weight and go further toward sustaining the attacker’s unchanging burden.” American Hoist & Derrick Co., 725 F.2d 1350, 1360 (Fed. Cir. 1984).

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Innovation Toys And Analogous Art – Defender Against Hindsight?

Wednesday, March 23rd, 2011

There is nothing particularly surprising in the recent Fed. Cir. decision of Innovation Toys v. MGA Entertainment, App. No. 2010-1290 (Fed. Cir. March 21, 2011) (a copy is available at the end of this post), which reversed a District Court finding of unobviousness, except that the District Court had erroneously found that a key piece of prior art – an 80’s electronic chess-type laser game, was nonanalogous art to the patent-in-suit on a 3-dimensional laser-target board game. Nonanalogous art decisions are rare, so this is an opportunity to revisit what is, after all, an important part of the Graham v. Deere test for obviousness. Graham v Deere requires that the differences between the claimed invention and the relevant art be considered in resolving obviousness. The key word here is “relevant art,” and how far afield Examiners and Courts can travel to find it.

Most commentators concluded that KSR further weakened the practical usefulness of this test, with the language that the POSA might be led to elements of the art other than those designed to solve the problem addressed by the invention:

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