Three years ago, when I started this Blog (or is it “Blawg”?), the hot topics were In re Kubin and the summary affirmance of Classen by the Fed. Cir. Today, along with the looming AIA regulations, Mayo v. Prometheus and Caraco are awaiting decision by the Supreme Court, and St-Gobain Ceramics v. Siemens and AMP v. Myriad are awaiting decisions on their petitions for cert. The old Chinese curse, “May you live in interesting times!” is “new again”, even if “The Art of War” is not on the Times bestseller list (but “American Sniper” is).
Well, the IP world around us has been nothing if not interesting. It is foolish to try to predict what will hold our (and the courts’ ) interest over the next year, much less three years. However, a trend that is easy to spot is the interest exhibited by the current Supreme Court in IP cases. When I did my list of the top ten IP stories of 2011, six of them involved the Supreme Court.
Another one is the rise of IP and bioethics issues related to “personal genomics”, “genome-scale testing” or “companion diagnostics” (however you wish to term it). Today, the journal, Narrative Inquiry in Bioethics announced that it will publish an issue devoted to personal stories from individuals who have received results from genome-scale testing – such as from a SNP profile (bet you haven’t heard that term in a while). On the flight home from AUTM, I read a story about one such individual in the LA Times – a professor who had his entire genome sequenced and posted it so that any group could venture a diagnosis or other observation. One group spotted a marker for type II diabetes, which the prof obligingly developed after recovering from a viral infection.
But post-Bilski, how do we practitioners protect this rapidly emerging area, when the Fed. Cir. has told us that comparing a patient’s DNA sequence with a reference sequence to look for markers or mutations is an “abstract idea?” “The love you take is equal to the love you make” is an abstract idea – my odds of developing some devastating malady are not!
Well, I didn’t intent to “go on”, but do want to thank SLW colleagues Mary Hirsch and Bryan Ness for posting my observations so quickly (Did I beat patentlyO?), and my most regular guest contributors, Stefan Danner, Paul Cole and Ronald Schutz. At the recent AUTM Annual Meeting, Christie Hefner (yes, Hef’s daughter) gave a thought-provoking talk about the difference between a brand and a trade name (“Nike” is a brand, Reebok is a company that makes shoes), and how to manage and monetize a brand if you are lucky enough to have/be one. Patents4Life probably hasn’t achieved “brand” status yet, but maybe it could be “IP news with an attitude” (almost a couplet). Well, please keep on reading and I might get there someday. At least, I promise to be interesting.