Wednesday whimsies

Around the blogs.  The IPKat's keen pursuit of fresh news in the continuing saga of the Red Soles, with Louboutin lining up against Yves St Laurent, has brought him to Charles Colman's Law of Fashion blog. Charles is an enthusiastic contributor to the LinkedIn Law of Fashion and Fashion+IP groups too.   Elsewhere, Canadian blogger Barry Sookman has done a major piece of work here in seeking to place the tetralogy of Big British Copyright Cases (LucasFilms, Meltwater, 20th Century Fox v BT and TV Catchuup) within the context of Canadian jurisprudence.  Wragge partner Paul Inman has exposed his puzzlement over the recent Advocate General's Opinion in the patent term extension case of Medeva to readers of The SPC Blog here).   There's also a neat note here on jiplp by Robert Kunstadt and Ilaria Maggioni on the recent US Therasense ruling on 'inequitable conduct' that can deprive a patent owner of his right to enforce his patent.


Chris Torrero was the first of a number of folk to prod this Kat into writing about the Myriad gene patent ruling in the Unites States. So sure was he that several other Kats would be writing about it that he sat back and thought of copyright ... but it was not to be. This note on GenomeWeb summarises the position:

"A US Federal Circuit Court of Appeals in Washington, DC, today ruled that US patent law allows for the patenting of human genes when it overturned an earlier district court decision that tests using isolated human DNA were invalid because genes were natural products. ...

The lawsuit claimed that Myriad's BRCA gene-related patents are invalid because genes are natural products that cannot be patented, and last year that position won over a US District Court judge in New York. 

In its appeal of that ruling, Myriad argued in April that its patent claims on BRCA genes, which it uses in its BRACAnalysis test for predicting individual breast and ovarian cancer risk, are in accord with US patent law. ... Myriad presented the view that isolated DNA is "a chemical composition which is not found in the human body, and which has important diagnostic and therapeutic uses that cannot be accomplished with a human's natural or native DNA as found in the body," according to a company spokesperson. 

In its ruling ... the US Court of Appeals said that it considered several issues that were brought forth in oral arguments and in amicus briefs, including one from the US Patent and Trademark Office, concerning whether isolated DNA was similar to naturally occurring elements such as lithium, or if it was something in part engineered by human development. The court also considered whether or not the plaintiffs in the suit had shown that Myriad's patents have caused any harms or hindered research on these gene variants. After reviewing a number of arguments, the three-judge circuit court stated that its decision that "isolated DNA molecules are patent-eligible comports with the longstanding practice of the PTO. ...".

Judging by the contents of this Kat's postbag, the debate is being conducted mainly on moral issues, and with not a little carefully-applied hysteria. He has seen few comments that focus specifically on the legal issues and how the facts of the Myriad patent measure up to them. His personal view is that, so far as he can tell, the majority decision of the Court of Appeals (which you can read here) is correct in law, but that the real problem lies downstream of the patent, in the realm of the control which Myriad seeks to exert over it. A healthy patent system will allow patentability in order to ensure that novel and inventive information is disclosed and to encourage and protect investment -- but it must be able to step in, where the public interest in healthcare is concerned, to ensure a greater degree of access and fair play than would be required if the patent were for a new device for chilling beer.  For further reading, Catherine Saez's piece here for IP Watch is a good place to start. Today's Managing Intellectul Property piece, here, looks towards the prospect of a Supreme Court ruling [Great, says Merpel, so long as we get something a little more decisive than Re Bilko Re Bilski].


Scams again.  The sparkling pen of the IPKat's friend Tony McStea, stimulated into action by yesterday's post here, has been busily creative again.  "They may be ordinary tramps and not Supertramps, but..."

I was a successful businessman
till I kept paying those fake
renewal notices 

It's scamming again
Oh no, it's scamming again
It gives us all such a pain
And sucks much cash down the drain
It's scamming again
I feel our effort's in vain
In IP it is a bane
And places us under strain 

Come on you scamming fighters
And don't you give the slightest
Quarter to those who would benight us
And take ground back again
It's scamming again...

You can check out the original ("It's Raining Again") here.