Name Your Price? The New Proposed No-fault Patent License

The creator of Priceline, Jay Walker, has become fascinated by patents and patent licensing it seems.  He has bought and merged several patent holding (some say patent troll) companies and proposed creation of a new agency called the “United States Patent Utility”.  It would act as ASCAP works for copyright protection, charging license fees, negotiating with potential users and presumably sending cease and desist letters to potential infringers. 

Will this work because patents have become as narrow as copyrights, and their value is as low?  Are patent attorneys or licensing attorneys now irrelevant to patent licensing?  Or is the specialization of licensing becoming even more narrow and parochial?

Go to:

Press Release: May 14, 2014, “Board Members Announced for Patent Licensing Entity

[PLI Patent Law Center News, “Jay Walker Licensing Plan Takes Shape”

Posner Pronounces Promega Pilfered Patented Process

Click here to read Posner opinion in Promega v. Life Technologies, 2013

While sitting as a judge in the Northern District of Illinois, Judge Posner has ruled in a 15-page Markman opinion that Promega’s DNA fingerprint kit infringes on a patented process licensed by Applied Bioscience from Caltech. In the brief opinion, Posner rejects Promega’s efforts to narrow the patent’s claims beyond those regularly understood by expert scientists. Unfortunately for those watching SCOTUS and its rulings with regard to the Myriad case, Posner very clearly does not comment on the validity of the claims. We’ll have to stay tuned for that one.

The latter portion of the opinion is a veritable collection of USPTO Patent Bar test answers. Posner rejected arguments that the Caltech patent did not try to improperly “recapture reissue” by improperly broadening its claims in reissue. Next, he explained away Promega’s arguments that there was laches/equitable estoppel in the prosecution of the claims. He deals a coup de grace to arguments with regard to priority based on waiver and abandonment of a prior continuation application as the proper extension of time was sought and used. Lastly, he shuts the door on any admission that might be contained in a cross-license.

Posner’s job at the lower court may have been made easier by agreements in the cross-license that the patent claims were valid. Of course, Posner stays far away from any implication that this might have impacted his views on infringement. Of course, we know that Posner would never allow such a collateral issue to color his views while examining claims.

This is not the last word regarding these much litigated Caltech patents. So stay tuned for more soon.

“Sea change” coming for cancer treatments

With the human genome project over, and new details of cancer oncogenes and tumor suppressors coming daily, where are the new treatments for cancer? A new article discusses how the FDA is working with researchers to expedite or ‘fast track’ certain kinds of therapeutic drugs to locate individualized breakthroughs faster and sooner.

This is the promise of gene sequencing finally coming to fruition. While real complexity still exists, the promise of customized cancer treatments is becoming a reality. Tumors are being sequenced in the hundreds if not thousands, and their differences and similarities charted, picked apart and compared.

For example, in September of 2012, a group of researchers called the Cancer Genome Atlas Network further dissected the types and subtypes of breast cancer. Using genomic analysis, four distinct sub-types exist with vastly different genetic profiles in terms of what proteins will turn their internal switches ‘off’ or ‘on’.

These types of discoveries will help us finally unravel the complexities of cancer. Once a sequence is known, along with its epigentics, protogenomics and metabiolomics together new powerful therapies can be readily created.

Yet, even as these new technologies flourish, the Supreme Court stands ready to exclude them from patent protection as “unpatentable abstract ideas.” The ACLU has successfully petitioned the U.S. Supreme Court to consider the issue of “whether human genes can be patented” in the case of Association of Advanced Pathology vs. Myriad. Unfortunately, this is not an issue that needs to be decided. The work that has been performed by doctors, researchers, laboratories and companies on each and every diagnostic tool and therapy is not a “human gene” and has taken thousands of person-hours to develop. A patent also is not forever, and without some expectation of recouping research costs, who will bother with small subsets of cancers when huge drug conglomerates will swoop in and steal their work as soon as it is published?

As first world countries agonize over how to eliminate carcinogens from our world, the medical world may beat us to the punch with cures for many if not most cancers. It is an idealist’s wish, but science has created hope for some of that idealism to come true. Let’s hope that the work, creativity and unique nature of these discoveries is given the credit and protection it is due.

Can Mattel and MGM play nice if ordered to by the court?

The carousel of verdicts that is the “Barbie vs. Bratz” case has gone around one more time. Now, MGM appears to have the upper hand, at least for now. The jury’s 2011 verdict for MGM has been slashed in half by the Ninth Circuit, and MGM’s trade secret claim has been thrown out, albeit without prejudice. Specifically, on January 25, 2013, Chief Judge Alex Kozinski issued a terse, two-page order overturning half of the approximately $175 million jury award. 2013 DJDAR 1040 (January 25, 2013).

To put this seemingly innocuous ruling in perspective, let’s recap a bit:

The case dates back to its original filing in 2004 in Los Angeles’ federal court. See

In 2008, during the first trial, a jury awarded Mattel $100 million in damages for copyright violations it alleged and trade secret theft by one of its employees who left Mattel to create the Bratz dolls at MGM.

In 2010, the Ninth Circuit reversed the jury verdict (see Mattel, Inc. v. MGA Entm’t, Inc., 616 F.3d 904, 918. MGA went on the offensive, filing a claim against Mattel for trade secret misappropriation.

Then in April of 2011, during the retrial, the new jury went completely the opposite way, ruling that Mattel was entitled to $10,000, but that MGM was entitled to approximately $80 million for trade secret theft and a staggering $137 million in attorneys’ fees for having to endure the legal battle with Mattel (who was now on the losing side). (see accessed on 2/5/2013). What firm was able to bill $137 million in seven years? None other than Skadden, Arps, Slate, Meagher & Flom.

So back to the latest ruling in which Chief Judge Alex Kozinski has issued another succinct yet weighty proclaimation. First, Judge Kozinski zigged for Mattel, as the $80 million awarded by the jury to the Bratz owners for trade secret theft was tossed alongside with Mattel’s trade secret theft claims. MGM’s claims for trade secret theft should “not have reached this jury” according to the Chief Judge.

But just as one hand giveth, the other taketh away: Next, Kozinski approved the stunning $137 million award to MGM in the cost of its attorney’s fees. In five brusque paragraphs, with very little discussion, the opinion is a stinging rebuke of one of the countries’ leading law firms, Quinn Emmanuel Urquhart & Sullivan. One of the most telling quotes was an affirmation that Mattel’s scorched earth strategy was simply “stunning in scope and unreasonable in the relief it requested.'”

Finally, Judge Kozinski, who always enjoys the last word, ended the opinion by writing “While this may not be the last word on the subject, perhaps Mattel and MGA can take a lesson from their target demographic: Play nice.” We’ll wait for the last word on that one, but we won’t be holding our breath.

History of Science Blogs (already?!)

As science on the internet matures, an actual history of science on the internet necessarily is spawning.  Scientific American columnist Bora Zivkovic has written an in-depth article going back into our recent memories: take a walk back in time to the days of usenets, html perl scripts and plain old flame wars.

See also: (evolution and history of science) (medicine)

Pandas’ Thumb: (evolution)