Banning Stem Cell Research — Or Cloning? Or Both?

Posted on March 30, 2011 by Warren Woessner

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”

Posted on March 25, 2011 by Warren Woessner

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?

Posted on March 23, 2011 by Warren Woessner

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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One step ahead and one step backward for the EU patent

Posted on March 22, 2011 by Warren Woessner

The following is a contribution from Camilla Rendal Nielsen of Zacco Denmark A/S

1.   The EU Competiveness Council have authorised “enhanced cooperation” in the area of unitary patent protection, and.

2.   The EU court now states that the proposed Patents Court is not compatible with the provisions of the EU Treaty.

The European Competiveness Council have given their final consent to create a unitary patent system under the so-called enhanced co-operation scheme. As we announced last month, a number of European countries have moved towards a unified patent under the EPO, without Spain and Italy, who were blocking the proposed language regime (English, French and German). The current presidency under Hungarian leadership is eager to move the process forward and to begin negotiations to get all member states involved. The proposed unitary patent or EU patent would be granted by the European Patent Office and be valid in all participating states without the need for further translation or registration in each country, thus reducing the costs of patenting in Europe dramatically.

The Council gave their consent, well aware that the European Court of Justice had just handed down an opinion stating that a European and Community Patent Court (the Patents Court) is not compatible with the provisions of the EU Treaty. (Press release available at the end of this post). The presidency and numerous legal experts maintain that the creation of a unitary patent and the creation of the Patents Court are two different issues, and we may see a unitary patent system in place well before the Patents Court is functional.

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