The Coalition for Patent Fairness (CPF) has put out a memo trying to debunk what it sees as the myth that patent reform no longer requires congressional action.  From CPF:   “The Court’s ability to effect needed changes is limited because it is restricted by the language Congress enacted more than 50 years ago. Only Congress has the authority and the responsibility to ensure that our patent system is meeting the needs of the 21st century economy and the current need for economic growth and job creation.”  (More here)

Large Hadron Particle Collider Punk’d By Time Traveling Bird

The Large Hadron Collider (LHC), outside Geneva, was shut down by a “bit of baguette” after a passing bird may have dropped the chunk of bread on an electrical substation above the accelerator, causing a power cut.  Some physicists have formulated a theory that suggests a time-traveling bird was sent from the future to sabotage the particle accelerator. Bech Nielsen of the Niels Bohr Institute in Copenhagen and Masao Ninomiya of the Yukawa Institute for Theoretical Physics in Kyoto, Japan, have published several papers over the past year arguing that the CERN experiment may be the latest in a series of physics research projects whose purposes are so unacceptable to the universe that they are doomed to fail, subverted by the future.  (via Time)

Congress May Be Helping European Biotech

European researchers are on the cusp of overtaking their American counterparts in biotechnology innovation. In 2004, European biotech firms had access to only 20% the private equity financing that U.S. firms had. Currently, the European Union has just about as many dedicated biotechnology firms as the U.S.  Now, Congress is considering a bill that would allow drug companies to make knock-off versions of biologics much sooner than in Europe by allowing a data exclusivity period of just five to seven years. Biotech companies believe they won’t have enough time to recoup the hundreds of millions of dollars invested before having to compete with biosimilars.  The biotech sector argues that  the data exclusivity period needs to be at least 12 years to be competitive. (via WSJ)

Post-Grant Review System

The Innovation Alliance recently sent a letter to USPTO Director David Kappos outlining requirements for a post-grant review system that is designed for prevent delay and abusive challenges. The letter proposed that, in order to be fair to all parties, a post-grant review system must prohibit the ability of private parties to later challenge the validity of a patent in court on any grounds that the challenger: (a) Actually raised in a post-grant challenge; (b) Knew about but did not raise; and (c) Would have known through a reasonable search of the prior art as determined by the guidelines the Patent Office developed and already enforces in other contexts. (pdf)

Is The Practice of Medicine Impeding Innovation?

Citing the fact that the majority of patients receiving the personalized medicine drug Herceptin had not been previously administered Herceptin’s diagnostic test, the BiotechBlog asks whether the practice of medicine is capable of keeping pace with medical innovation.  This is important since the diagnostic test can identify those patients most likely to benefit from the drug and exclude those who are likely to see no benefits.  Are the gatekeepers unaware of how to effectively prescribe personalized drugs?  (via IP Think Tank)

Hilter is Furious at the Supreme Court for Granting Cert to Bilski

Using the Hitler rant scene from Oliver Hirschbiegel’s 2004 film Der Untergang (“Downfall“), someone named patentlybilski made a spoof on the Bilski case, as though that case needs anything to make it more surreal.  While this seems somewhat overdone, it’s amusing to those in the field.  The poster notes only:  “Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.”  Decide for yourself.  (via 271 Patent Blog)

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Ireland has overhauled its patenting rules to make patent applications more user-friendly and the awarding of patents more in line with US and European standards. The new changes include removing legal impediments to the online delivery of Patent Office services. The Office website already offers a range of online interactive services on a par with  and in some cases, exceeding those provided by other national patent offices in Europe.

Does This (Health Insurance) Make Me Look Fat?

The Volokh Conspiracy looked at a recent paper correlating health insurance and weight gain stating that health insurance constitutes a “true economic subsidy for obesity.” According to the paper, which estimates weight gain in terms of body mass index, a measure of weight related to height, “private insurance increases BMI by 1.3 points and public insurance increases BMI by 2.1 points.” The VC remains unconvinced:

I am both intrigued with and skeptical of papers purporting to find economic-sy rationales underlying cultural and, more exactly, biologically-grounded behaviors (food, eating, hunger, etc.). A quick (granted, very quick) read of the paper suggested that the details and qualifiers make it far more cautious than suggested by statements such as “insurance makes you fat” or that the fact of certain correlations quite so literally “literally encourages obesity.”

VoloMedia Decides It Wants to Be Most Hated Company

VoloMedia announced that it was awarded U.S. Patent 7,568,213, entitled “Method for Providing Episodic Media,” and now claims to have patented all manner of media delivery by episodes.  The patent claims:

1. A method for providing episodic media, the method comprising: providing a user with access to a channel dedicated to episodic media, wherein the episodic media provided over the channel is pre-defined into one or more episodes by a remote publisher of the episodic media; receiving a subscription request to the channel dedicated to the episodic media from the user; automatically downloading updated episodic media associated with the channel dedicated to the episodic media to a computing device associated with the user in accordance with the subscription request upon availability of the updated episodic media, the automatic download occurring without further user interaction; and providing the user with: an indication of a maximum available channel depth, the channel depth indicating a size of episodic media yet to be downloaded from the channel and size of episodic media already downloaded from the channel, the channel depth being specified in playtime or storage resources, and the ability to modify the channel depth by deleting selected episodic media content, thereby overriding the previously configured channel depth.

VoloMedia claims it’s application, filed in November 2003, was “almost a year before the start of podcasting.” Really? That must explain the lack of non-patent cited references.  They helpfully set themselves up for invalidation saying, “Today, podcasting is 100% RSS-based. However, the patent is not RSS-dependent. Rather, [the patent] covers all episodic media downloads.” VoloMedia says it has filed a dozen U.S. patent applications since 2003.  No word on whether or not their patent on the Internets will issue.

NPR Listeners Pick 100 Best Beach Books (For NPR Listeners)

I know what you’re thinking: “NPR listeners go to the beach?!” We don’t know about that but NPR got 136,000 votes from 16,000 listeners for their top picks for the 100 Best Beach Books Ever. Here’s the top 10:

1. The Harry Potter series, by J.K. Rowling
2. To Kill a Mockingbird, by Harper Lee
3. The Kite Runner, by Khaled Hosseini
4. Bridget Jones’s Diary, by Helen Fielding
5. Pride and Prejudice, by Jane Austen
6. Divine Secrets of the Ya-Ya Sisterhood, by Rebecca Wells
7. The Great Gatsby, by F. Scott Fitzgerald
8. The Hitchhiker’s Guide to the Galaxy, by Douglas Adams
9. Fried Green Tomatoes at the Whistle Stop Cafe, by Fannie Flagg
10. The Poisonwood Bible, by Barbara Kingsolver

Our pick of The Time Traveler’s Wife, by Audrey Niffenegger just missed the top slot at number 11.  See the whole list here.

Midlevel Associates Sad They Make So Much

The American Lawyer’s annual survey of AmLaw 200 midlevel associates pointed out the obvious:  that cutbacks and uncertainties are making lawyers unhappy. Wachtell, Lipton, Rosen & Katz, scored well in the pay ranking with the median fourth-year associate earning $215,000, plus a $135,000 bonus. (Note to GC’s: If your lawyers are paying associates this much money, you seriously need to check out the services offered in the Midwest). But there’s no pleasing everyone.  One associate at Boston’s Nutter McClennen & Fish — ranked number one overall — complained: “The firm switched from serving Starbucks coffee to regular, unbranded coffee. As sad as that is, I miss that the most!“  Wait, they got Starbucks?!?!

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WAMU Radio Station (88.5 FM) hosted a segment with Rebecca Roberts on patenting  gene-related products. The biotechnology industry says these patents are necessary to spur innovation. Opponents say they actually stifle science. We examine the intersection of cutting-edge genetic research and intellectual property. Guests included Hans Sauer, Associate General Counsel for Intellectual Property, Biotechnology Industry Organization.  You can listen to the segment in Real Audio here. (via Patently BIOtech)

Male Baby Bomb

The Volokh Conspiracy talks about how the one-child policy and preference for boys in China has led to shortages of marriageable women in China, especially in rural areas. In this story, brides are able to extract a bride-price. Volokh notes that in a world with scarcity of women – especially in a world of scarcity of females and yet a cultural preference for male births – the result would be increased treatment of women as property. More valuable property, yes, but increasingly as property precisely as the perception of its value increased.

Gene Patent Fearmongering

The Slate ran an article about the evils of patent human genes.  “Patents are meant to protect inventions, not things that exist in nature like genes in the human body,” quoting Christopher Hansen, an attorney for the American Civil Liberties Union in regards to their lawsuit to have gene patents declared unconstitutional.  The Patent Office estimated that about 52,800 patents have been granted related to genes, fragments of genes, genetic processes and bits of DNA as small as a single letter change in the genetic code.

Handicapping Bilski

IP Law & Business laments that when the Federal Circuit issued the landmark Bilski decision, some folks were ready to call it the death of (most) business method patents, or even software patents—that view may be a bit premature. Even if Supreme Court nominee Sonia Sotomayor joins the court and turn out to be strongly pro-patent, those hoping for stronger limits on what can be patented, there are still a number of way to find a majority.  Several justices have, in other cases, dropped hints about what’s in their minds on this subject.

Organic Farms Under Fire

Organic farmers are wondering if some vague bills introduced both in the House and Senate of the US Congress, a reorganization of America’s agriculture system aimed at tracking and regulating foods for public safety, could endanger organic farms and gardens.  The bills, S.425 and H.R.875, attempt to modernize food safety and regulate and standardize agriculture by creating an agency called the Food Safety Administration, but in the process they could threaten organic farming.

German Court Bans Long Names

The German Constitutional Court upheld a ban on married people combining already-hyphenated names, forbidding last names of three parts or more.  The 1993 law that allows only one hyphen and two last names for married people. Germany’s highest constitutional court upheld the law in the case of the dentist, who wanted to be known as Frieda Rosemarie Thalheim-Kunz-Hallstein. (ABA Journal via Blawg Review editor)

Patent Lawyers at Sea

Co-skippers and fellow patent attorneys, Gary Ropski of Brinks Hofer Gilson & Lione and Leif Sigmond, Jr., of McDonnell Boehnen Hulbert & Berghoff LLP, got third place in the 2009 Patent Cup sailing regatta held May 27-30 at the Yacht Club de Ilhabela, Brazil, located on the island of Ilhabela on the northeast coast of the Brazilian state of Sao Paolo. Who knew?

Trolling For Votes

Polling for Top Patent Blog (by Gene Quinn at IP Watchdog) continues here. In a two-question poll, you can vote for both Favorite Blog and Most Regularly Read Blogs.  If you haven’t voted yet, there’s still time to do so here. Yes, we’re hoping you vote for us.  We’re shameless and you know it.  Or, at least you can find some new blogs for your reading pleasure.

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Earlier, the university filed a lawsuit in federal district court against chemical engineering professor Galen Suppes to regain rights to his research relating to renewable energy.  Now, a federal judge has dismissed the lawsuit ruling that federal patent law does not apply in the case. The university says that chemical engineering professor Galen Suppes sought patents without assigning to the university and failed to assign his inventions according to university rules.  Suppes has said he sought ownership of his inventions only after the university failed to commercialize his research.  The university then filed a similar lawsuit in Boone County Circuit Court on the same day the federal suit was dismissed.

Chief Circuit Judge Michel Never Saw A (Completely) Bad Patent

Judge Michel gave the keynote at the FTC hearings on “The Evolving IP Marketplace”, addressing the state of patent law and patent reform. Highlight:

I’ve been on the court for twenty years and eight months, and I cannot ever remember seeing a single patent, I’m sure they’re out there, but I can’t remember seeing one where every single claim was invalid. I’ve seen innumerable patents where some of the broader claims either were indefinitely broader or were damn close, but in all of those cases, the narrower claims seemed to me equally clearly to be plainly valid. So what we really have is a problem of some over-broad claims getting through the system, slipping through the sieve that in the ideal world would catch them.  (via 271 Patent Blog)

FDA Says Cheerios Cereal is a Drug

The FDA has issued a warning letter to General Mills alleging “serious violations” of the FDC Act in the label and labeling of Cheerios cereal.  Specifically, the FDA contends that the following label claims make Cheerios an unapproved new drug under FDC Act § 505(a) because they indicate that the cereal is intended to prevent, mitigate, and treat hypercholesterolemia:

• “you can Lower Your Cholesterol 4% in 6 weeks”
• “Did you know that in just 6 weeks Cheerios can reduce bad cholesterol by an average of 4 percent? Cheerios is … clinically proven to lower cholesterol.”

(via FDALaw Blog)

Talking with Acting Commissioner for Patents Peggy Focarino

Gene Quinn of IPWatchdog spoke with Acting Commissioner for Patents Peggy Focarino about what the Patent Office is trying to do to enhance quality and make a better, smoother process.  In discussing a new Ombudsman, Focarino had this to say:

We are still in the process of working out the implementation details, but each TC will have an ombudsmen who will serve as a resource to applicants on TC-specific issues.  I envision this resource to be a facilitator of sorts who can resolve administrative issues quickly and get an application back on track when problems arise.  This resource is independent of an examiner’s chain of command so can be viewed as a neutral facilitator by the applicant.

In the Irony Can Be Pretty Ironic Category

Two enforcement lawyers at the Securities and Exchange Commission are being investigated by federal prosecutors and the FBI for possible insider-trading violations, according to a report from the SEC’s inspector general.  No wonder the SEC was too busy to get around to firguring out Bernard Madoff’s $65 billion Ponzi scheme. (via WSJ Law Blog)

ed.

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The Federal Trade Commission held the fourth in its series of hearings on the Evolving IP Marketplace. This set of hearings will explore the emergence of new business models in the market for intellectual property, strategies for buying, selling and licensing patents and the role of secondary markets. Discussions covered some of the recent changes in markets for intellectual property. Discussion included valuing and monetizing patents, strategies for buying and selling patents and the role of secondary markets for intellectual property.

Temporary Restraining Order Pulmicort

The US District Court for the District of New Jersey granted AstraZeneca’s request for a temporary restraining order, barring Apotex from selling a generic version of AstraZeneca’s Pulmicort Respules (budesonide inhalation suspension) until further order of the court. On 27 April 2009, the court will commence a hearing to determine whether the injunction should be continued.  Patents covering Pulmicort Respules expire in 2018 with pediatric exclusivity extending to 2019.

TRIPS, Pharmaceuticals and Manufacture for Export

This week’s IP Think Tank podcast has panelists Shamnad Basheer and Duncan Bucknell joined by Nicholas Gruen to follow up from a recent blog post and discuss Pharmaceutical patent extensions, TRIPS, Free Trade Agreements and Pharmaceutical Manufacture for Export.

Enter the Octomom

Nadya Suleman, often referred to as the Octomom after giving birth to octuplets through IVF despite living on welfare and already being a mother of six, has reportedly filed a pair of trademark filings with the USPTO on the term Octomom.  The applications, filed April 10th, are to gain rights to the term Octomom for selling disposable diapers and for ongoing television programs.

Unfortunately, another trademark application for Octomom had already been filed by Super Happy Fun Fun, a Texas-based corporation, which submitted its application March 12th, to use the name for computer game software, toys and action figures and wireless and mobile entertainment.

The company’s website shows a product called Fertile Myrtle (listed as formerly Octomom) for iPhone and iPod Touch. There is no indication why it is listed as “formerly Octomom” but the game is listed as “Simple and addictive game play. Press down on Fertyle Myrtle’s swollen belly, and another adorable bundle of joy will be brought into the world.”

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