Archive for the ‘Uncategorized’ Category

Will Copyright Law Put Us on a Path to International Patent Exhaustion?

Tuesday, February 2nd, 2016

This is a guest post from Theresa Stadheim of Schwegman Lundberg & Woessner.

This article was first published by the American Intellectual Property Law (AIPLA) Patent Law Committee in its January 2016 newsletter.  For membership in AIPLA, visit here

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Will Copyright Law Put Us on a Path to International Patent Exhaustion? Lexmark v. Impression Products

Under the doctrine of patent exhaustion, once a patented product is sold in a sale authorized by the patent holder, patent rights in that product are exhausted.  Domestic patent exhaustion (i.e., patent exhaustion upon a domestic sale) is a common law doctrine in the United States, as well as being generally accepted worldwide.  However, the current Lexmark v. Impression Products litigation has raised the issue of whether international sales should also lead to exhaustion of patent rights.

The Lexmark v. Impression Products litigation

Lexmark manufactures printers and toner cartridges used in those printers.  In Lexmark Int’l, Inc. v. Ink Techs. Printer Supplies, LLC, plaintiff Lexmark alleged that it first sold the patented inkjet cartridges at issue outside of the United States, and that these cartridges were later acquired and remanufactured by defendants, including Impression Products, thereby infringing Lexmark’s patent.[i]

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Labeling GMO’s — Too Late and Too Much

Friday, January 29th, 2016

iStock_000066549553_SmallCommentators arguing that genetically-modified plants (and animals) or “GMO’s” have been prepared by conventional plant breeding, fail to address the central issue driving the debate about the safety of genetically-engineered crops intended for human consumption.  The issue is not whether or not it is safe to continue to crossbreed different varieties of wheat or corn, or any other plant, to yield improved traits.  This is indeed botanical intervention that has been going on for centuries.

In recent years, companies like Pioneer and Monsanto developed the ability to introduce genes that were isolated from non-plant sources, such as bacteria, into corn, soybeans, cotton and other crops.  Such genes impart properties to the “transgenic” plants such as the ability to resist attack by the European corn borer or to be resistant to glyphosphate (“Roundup”), a relatively non-toxic herbicide, so that it can be used to control weeds while not harming the cash crop.  However, such genes are foreign to the host plant.  This has led “green” organizations to oppose their use to produce “Frankenfoods” that raise human health issues, or at least have demanded the such food or food products be labeled as produced from “GMOs,” so that consumers can choose whether or not to consume them. (more…)

New IDS Framework Proposed by USPTO

Tuesday, November 17th, 2015

Courtney Brinckerhoff posted an informative piece on the new proposed IDS fee changes.

You can read it here.

The Federal Register Notice is here:

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Ariosa v. Sequenom – Novel Genetic Analysis Fails The Mayo Test

Friday, June 12th, 2015

3d render of dna structure, abstract  backgroundToday, the Fed. Cir. affirmed the district court’s holding that the method for detecting paternally inherited nucleic acid of fetal origin in a sample of the mother’s blood was a patent-ineligible natural phenomenon. Ariosa Diagnostics, Inc. v Sequenom, Inc., Appeal No. 2014-1139, 2014-1144. (Fed. Cir. June 12, 2015). (A copy is available at the end of this post.)  Although commentators have already begun to lament that this decision puts a stake in the heart of claims to diagnostic methods (what I call “If A, then B” claims), I am going to do my best to resist this conclusion.

Of the claims asserted in the case, only one (claim 21) recites “providing a diagnosis based on the presence and/or quantity and/or sequence of the foetal nucleic acid,” and no dependent claim identified what specific diagnosis (e.g., increased likelihood of Down’s syndrome) was provided (or to whom it was provided). Claim 1 was broadly directed to a method for detecting a paternally inherited nucleic acid of fetal original performed on a maternal serum or plasma sample from a pregnant female by amplifying a paternally inherited nucleic acid and detecting its presence in the sample.

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