In Part One of this series, we looked at the Court’s decision in Monsanto, where the court rejected the applicability of the exhaustion doctrine to self-replicating products. Today, we will look at the court’s recently released opinion in Myriad, in which the Court held that naturally occurring human genes are not patentable. The case was brought by the American Civil Liberties Union in an effort to block the patenting of human genes, a strategy many hope will lower costs of genetic testing, making it more accessible to the general public. Read the rest of this entry »
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Biotech Companies and Investors Receive the Supreme Court’s Much-Anticipated Decision in Myriad; Decision Could Reshape the Patent Landscape
SCOTUS Delivers Judicial Victory to Agriculture Giant Monsanto, Limits Holding as Court Charts New Territory in Patents and Self-Replicating Technology
The patentability of self-replicating products has been presented to the Supreme Court in two recent cases that have been closely watched by biotechnology companies and their investors.
In the first of the two cases, Bowman v. Monsanto, the Court handed down a 9-0 opinion, authored by Justice Elena Kagan, giving a clear victory to Plaintiff Monsanto. At the heart of the case was how to reconcile the exhaustion doctrine with a self-replicating product. The exhaustion doctrine serves to end the patentee’s monopoly in an item, giving the “purchaser, or any subsequent owner, ‘the right to use [or] sell the thing as he sees fit.’” However, there are limits to the exhaustion doctrine, and purchasers are prohibited from engaging in certain activities that could undermine the patentee’s patent. The exhaustion doctrine extends only to the “particular item” that is purchased, and does not protect buyers who seek to create copies of the original product. Read the rest of this entry »
Financing through crowdfunding is an attractive way for startups and small businesses to raise capital by receiving small amounts from a large number of investors. The method will only increase in popularity after the SEC finalizes the provisions for equity-based crowdfunding. There are, however, potential IP problems inherent in crowdfunding. In order to attract investors, companies have to publicly disclose detailed information about their business. Competitors can then use this information to find IP violations and sue the budding business. In order to prevent or prepare for this situation, companies using crowdfunding should conduct a thorough freedom to operate (FTO) analysis. Read the rest of this entry »
As we discussed in our recent pieces about the Stop Online Piracy Act (SOPA) and the Anti-Counterfeit Trade Agreement (ACTA), online communities have grown increasingly agitated by efforts to globalize the U.S. intellectual property regime. But the Trans-Pacific Partnership Agreement (TPP), a free trade agreement that liberalizes far more than intellectual property protection, has so far not sparked the type of viral outrage that halted SOPA and ACTA.
The TPP seeks to establish an entirely new free trade zone among Pacific Rim nations. The agreement originated in 2006 between Chile, New Zealand, and Singapore but participants now include Australia, Brunei Darussalam, Malaysia, Peru, the United States and Vietnam. Canada, Japan, and Mexico have expressed an interest in joining talks, but membership could require significant changes to domestic laws – for example, Canada may be required to cease its protectionist dairy supply management regime.
TPP responds not only to the breakdown of world trade talks within the framework of the WTO, but also specifically to the emergence of China, whose exclusion from talks is no accident. As much a successor to NAFTA as to ACTA, the TPP seeks to eliminate all tariffs on a broad range of goods and services (including intellectual property) between members, to establish new rules for determining an import’s country of origin, and to create a new regime of legal remedies available to foreign businesses against national governments. According to Ron Kirk, the U.S. Trade Representative, the agreement “sets modern trade standards, including ensuring worker rights and protecting the environment.”
One of the means the TPP employs in reaching these stated aims is to prohibit nations from using capital controls (regulation of the flow of speculative capital). Capital controls remain popular in Asia, where they are sometimes credited with shielding India, China, and Malaysia from the effects of the 1997 Asian Financial Crisis.
The SOPA/PIPA uprising appears to have doomed those bills, but the United States Congress is not the only entity considering new restrictions on the web. Trade agreements are emerging as the new legal device for combatting unlicensed use of intellectual property online – avoiding the legislative process, and potentially impacting the openness of the Internet in ways that are inciting outrage in the online community. Two such agreements are positioned to have considerable effects on the global enforcement of intellectual property rights – the Anti-Counterfeiting Trade Agreement (ACTA) and the Trans-Pacific Partnership Agreement (TPP). This post looks at the first of these agreements, ACTA; check back shortly for our discussion of TPP.
It’s fair to say that cool heads did not entirely prevail in the entertainment industry’s war with Silicon Valley over new legislation aimed at curbing foreign online piracy. Terms like “rogue websites,” “end of the internet,” and “the Great Firewall” are only a sampling of the high-octane rhetoric that colored the public discussion of “SOPA,” the Stop Online Piracy Act, and its Senate analog, the PROTECT IP Act, or “PIPA.”
Critics charged that the SOPA/PIPA regime would enable arbitrary censorship, impose an enormous burden on tech firms, and would be ineffective against the more swashbuckling of web ‘pirates’. On the other hand, content owners argued that the hemorrhage of profits would not abate without the ability to block or de-fund foreign ‘pirate’ sites.
The unanticipated attention to SOPA was no accident – its opponents are uniquely positioned to amplify a message. As Reddit, Google, Wikipedia, and perhaps most critically the “Cheezburger” network (famous for hilarious pictures of cats) assembled a “blackout” protest, it appeared that the content industry had been taken a bit by surprise at the ability of web firms to ignite buzz over regulation of the Internet.