On February 24th, a letter sent by the Association of American Universities, signed by 145 universities, to Senators Grassley and Leahy and Representatives Goodlatte and Conyers, objected to parts of legislation such as “The Innovation Act, H.R. 9” that purports to deter litigation by non-practicing entities, such as patent “trolls.” The Universities emphasized the damage that fee-shifting provisions requiring the loser of an infringement suit to pay the winner’s costs and fees would do to educational and research institutions that already find it financially difficult to enforce their IP rights. The letter pointed out the chilling effect such provisions would have on attempts to license technology, especially to start-ups. Also noted was the fact that mandatory joinder provisions could draw a university and its inventors into litigation initiated by third parties over which the university has little control.
Posts Tagged ‘Patent Law’
On January 30th, the White House released a press release expanding upon President Obama’s mention of “precision medicine” in his State of the Union Address. Not surprisingly, the details are pretty much what we who are involved in various aspects of “personalized medicine” would expect – an emphasis on the use of genomic diagnostics to improve treatment selection – especially for cancer patients. The largest of the “Key Investments” listed would be to the NIH to develop what looks like the creation of a reference data base “through engaged participants and open, responsible data sharing.” The NCI would get $70 million to “identify genomic drivers in cancer” and develop more effective approaches to treatment.
Yesterday, Myriad announced it has settled the BRCA assay litigations that had been ongoing—and not going well– with Pathway Genomics, Invitae and Gene by Gene (and I assume….Ambry and Labcorp). Although I was just about at the brink of shouting “Stop The Madness” – the settlements mean that the IP community will not learn if Myriad had any patent-eligible claims in any of their assay patents. Would claims directed to mutations at specific positions of the BRCA1 or 2 genes have passed muster as that elusive “inventive concept” that both the Fed. Cir. and the S. Ct. extracted from Mayo as the standard by which to judge assays reciting abstract ideas or natural phenomena (which one is it?)?
You can read an article about the settlement on the GenomeWeb page by clicking here.
Effectively reversing Cybor Corp., which flatly stated that a lower court’s claim construction is a question of law which is to be reviewed de novo by the Fed. Cir., yesterday the Supreme Court held 7-2 that questions of fact resolved by a district court prior to claim construction must be given deference by the Fed. Cir. and only reversed if clearly erroneous.
The basic dispute arose over whether or not the term “molecular weight” was adequately defined — it could be calculated three different ways — or if the information in the specification, including a graph showing the peak average molecular weight met the requirements of s. 112(2). The experts disputed a discrepancy between value shown on the graph’s legend and the value at the actual peak of the curve. Teva’s expert testified that difference was small and was due to the conversion of the data from a chromatogram to the m.w. distribution curve in the figure. The District Court agreed, but the Fed. Cir. rejected these factual findings, without explaining why it was “clearly erroneous.” The Supreme Court vacated the Fed. Cir’s. Judgment of s. 112(2) invalidity and remanded, thus endorsing a “clear error” and not a de novo standard for review.