I’m really pleased to have had my review of the Court of Justice’s seminal UsedSoft v. Oracle decision published by the prestigious Society for Computers and Law. Click the image to go there.
With thanks to my good friend Dr. Michael Cohen, I came across an article in the New York Times about yesterday’s FTC report into the interplay of drug patents, litigation, business and competition. The report is some 270 pages long, so I’m not going to be reading it any time soon, but the central allegation is that some drug manufacturers are illegally distorting the post-patent market for generic medications. They do so, it is contended, by agreeing that both the patent holder and the generics maker will enter into a moratorium upon the expiry of a relevant patent, during which time neither party will bring their (competing) generic drugs to market. Continue reading »
In a decision that is already attracting plenty of controversy, comments, compliments and complaints, the Court of Appeals for the Federal Circuit has held that isolated human DNA molecules are patentable, and were validly patented by Myriad, under the (US) Patents Act. See Association for Molecular Pathology et al. v. Myriad Genetics, Inc et al. (Case No 2010-1406, Decided July 29, 2011). The decision reverses in part and affirms in part the decision of Judge Sweet, sitting in the District Court for the Southern District of New York (Case No. 09-CV-4515). Continue reading »
Microsoft’s recent (US) Supreme Court defeat at the hands of Canada’s i4i will cost them almost US$300m in damages for willful infringement of the latter’s XML patent. But in the longer term, the Court’s refusal to lower the burden of proof in challenges to a patent’s validity is good news for businesses with important patent portfolios.
At issue before the Court was section 282 of the (US) Patent Act, which reads, in part, as follows (my emphasis):
“35 U.S.C. 282 Continue reading »
After what seems like an eternity, the US Supreme Court today handed down its decision in Bilski vs. Kappos, on the patentability of various business methods. At first sight the decision does not seem to provide the overhaul of US patent law that many had been predicting. Much discussion will follow, so watch this space for additional commentary in the days and weeks ahead, particularly in relation to software patents (more properly “computer implemented inventions”).
The judgment (70-some pages) is available as a .pdf here. Enjoy!
I’m taking a quick break from the busyness of 5th Avenue, New York City, to stop into Barnes & Noble and have a look around for any new reference materials. After making my way through a large group of tourists, complete with large backpacks and umbrellas, I found what I was looking for: books relating to legal aspects of IP/IT and the Internet, all neatly situated between the sections dealing with US history and Computers.
Most people, I’m sure, would think nothing of this, but for me the placement of these books was interesting. Just like at Barnes & Noble, IP law occupies a special place in today’s world, trying to bridge the gap between the old and the new, our understanding of the past and our expectations of what the future will be like. Like most other laws it stands on traditions and theories accepted in the world’s greatest legislatures, but, perhaps unlike most other branches of law, it must also adapt to the fast-changing challenges of the technological revolution that began in the 20th century with, in particular, the advent of the home computer, personal media devices and the world wide web.
Does it do a good job? Is information technology ever static long enough for us to assess not just the short term but also the long term value of a statute or a case, (e.g. would State Street be decided the same today? We may get an answer to that once In re: Bilski (renamed Bilski vs. Doll) is heard by the US Supreme Court in November)? Knowing how quickly technology is changing nowadays, should we even bother to pay attention to long term goals? If there is to be any certainty for brand owners, just how willing should the judiciary and the legislature be to re-interpret existing laws or create new laws in response to prevalent business practices, particularly where those practices purport to offer short term consumer benefits (e.g. Google’s AdWords program, or safe harbor provisions which come into play when counterfeiters sell items on eBay)? Have we found the balance between too little protection (as some say is the case in Europe, where inventions for computer programs as such are not patentable, leaving code to be protected by Europe’s (strong) copyright laws alone) and too much protection (e.g. as others say is the case in the US, where both patent and copyright protection is, in principle, available to computer programs which on their face do not seem to be particularly inventive or novel)?
Most people with any interest in thes areas, whether informed or not, have formed some sort of conclusion on these questions. The challenge for IP is to find that elusive happy medium between respecting the essential ancient elements of our judicial systems which have seen us well so far, and not shying away from breaking with tradition when that is what is needed.
But, of course, different groups “need” different things, so the happy medium is likely to remain elusive.