It is with sadness that I note that Genie Hansen died suddenly at her home on Monday. She had been at Richard, Medlock and Andrews and Sidley and Austin and started Hemingway & Hansen in 2005 in Dallas. She had served on the Board of AIPLA and chaired the Women in IP Law and Public Relations Committees. I met her when Rochelle Seide and Kathleen Terry revived the Chem/Biotech Patent Practice Seminars for AIPLA, which were offered in three cities, every two years from 1994 into the 2000’s. In 1994 she presented the ethics part of the seminar with David Hitchcock. In 1996, she and David spoke on interferences, In 1998, she spoke on optimizing international filings and in 2000, she spoke on writing process claims. This was a tough schedule, but Genie’s ability to work hard and smile easily made these IP “Roadshows” effective and almost fun. She will be missed!
Archive for October, 2012
On Saturday, October 27th, I will one of the speakers in the Closing Plenary Session of the Annual AIPLA Meeting in Washington, DC. Since I was assigned to do part of the “Ethics” track, I will be speaking on post-Therasense Fed. Cir. opinions. Is the defense of inequitable conduct a limping zombie that can be easily avoided if you don’t just run into a corner and scream, or does it still have fangs? Also speaking on “Ethics – Privacy” will be Prof. Paul Ohm from the University of Colorado School of Law. David H. Harper will sum up the year in copyrights and trade secrets, Steven J. Wadya will handle trademark law developments, and Mark Lemley of Stanford will do the patent law wrap-up. Moderator Mary Kocialski of Oracle will try to keep us on schedule (Good Luck!).
From a biotech perspective, probably the most interesting session will be the Educational Session sponsored by the Biotechnology/IP Practice in Europe and (I think) the Chemical Practice Committees from 330-530 on Thursday that will – thoroughly, I am sure – discuss the “antibody exception” to the written description requirement. Apparently, reports of its demise in the wake of Ariad were untimely. I particularly anticipate learning the USPTO perspective. Now, how about a session on patenting diagnostic assays post-Prometheus and Myriad?
On October 9, 2012 the Fed. Cir. decided to revisit the divided panel decision in CLE Bank Int’l v. Alice Corp., Appeal No 11-10-1 (Fed. Cir. July 9, 2012) en banc. (A copy can be found at the end of this post.) In that ruling the majority held that a claim to a method for exchanging obligations in which a trusted third party settles the obligations – e.g., to deliver goods and receive payment – so as to eliminate “settlement risk” was not a patent-ineligible abstract idea, at least in part because a computer was necessary to create “shadow credit record(s)” for each party during the holding period.
I try not to delve too deeply into “computer law” in these blog posts, but the ultimate decision could have a big effect on “business methods” relating to the business of medicine, which is becoming both increasingly personalized and increasingly computerized. An article in the StarTribune (Minneapolis) today –taken from the New York Times –described a physician using a Smart Phone app (“MedCalc”) to calculate the appropriate levels of sodium to maintain in a patient by balancing parameters relating to the patient’s symptoms and blood chemistry.
On Friday, Oct 5th, the Supreme Court granted cert. to review the Fed. Cir.’s decision in Monsanto Co. v. Bowman, App. no. 2010-1068 (Fed. Cir. September 21, 2011). (A copy of the decision is at the end of this post.) Bowman, a soybean farmer, had purchased commodity (mixed -source) seed from a local grain elevator to plant as a “second crop” since he did not want to pay the higher cost that a licensed seed grower would charge. All sales to growers of the Monsanto seeds in question – these particular seeds are transgenic in that they carry, and pass on, the trait of resistance to glyphosate – are subject to a “standard form limited use license,” the “Monsanto Technology Agreement,” that licensed the two patents-in-suit to growers under the conditions, inter alia, that they would use the crop for planting only in a single season, not to resell the seed, and not to save seed for replanting. The growers can sell the seed to grain elevators as a commodity – e.g., for use as food or feed.