“Patent think” continues to retrench and retrace after SCOTUS’ series of unanimous rulings that ended patents for discovery of laws of nature, and for most applications of math. A cogent summary of the rulings is provided in a July 21, 2015 blog post by John Conley at the Genomics Law Report.  Unlike some never say die partisans, John admits the scope of the rulings and their significance. The rulings remain great (and eminently foreseeable), in my view. My perspective is wanting to see more discovery regarding the when, how and why of cancers and other diseases.

When are patents good, or not so good, for businesses? An October 29, 2014 article at AmLaw describes big banks attacking purported patent trolls. As is so often the case these days, the litigation is brought by an association of interested parties. The article starts as follows; read it all for useful information on the processes of the patent litigation industry:

“Wall Street may not be as vulnerable to patent infringement lawsuits as Silicon Valley or the pharmaceuticals industry. But the gap is narrowing—and major banks are collaborating in an effort to keep accused patent trolls at bay.

The Patent Quality Initiative, a group formed earlier this month by the The Clearing House Payments Company, announced Monday that it had fired off a barrage of briefs aimed at undermining patents (and patent holders) that threaten the association’s two dozen global megabank members. The papers were filed last week by a Clearing House entity called Askeladden LLC—named for a Norwegian folk hero known for outwitting trolls.”

Where will SCOTUS go next on patents, software, laws of nature, and fear of patent trolls/NPEs?  Another step on the journey unfolds today with oral arguments in Alice v. CLS Bank (SCOTUSblog case page).  Many amicus briefs were filed, and pundits are out commenting, with varying degrees of patent think. For example, here and here. Personally, I found interesting and thoughtful this essay by Eric Citron

My instinct is not constrained by patent training or patent thinking, and is that the Court will continue to reject efforts to patent facts about how to do business and facts about nature works, but will allow consideration of new and useful inventions created after uncovering the facts.  That outcome seems in the vein suggested by DOJ, ad described by the Citron essay above. In any event, I’m biased in favor of rulings that block patents for finding the rules of nature but reward invention of new answers and creations built from new knowledge. Thus, I’m still applauding the rulings by SCOTUS in Prometheus and the  subsequent unanimous ruling in Myriad Genetics that rejected claims for patents on BRACA genes found after a massive effort by many researchers and others working around the world.  

As someone else put it, there is no logic to giving a patent to the person who put the last brick in the wall when many investigated and published steps along the way to defining the rules about how nature works. And, predictably, Myriad’s loss at SCOTUS was followed by reduced prices for genetic testing for BRACA genes. The rulings also were followed by the IPO of Foundation Medicine, and its marvelous genetic tests that screen for hundreds of mutations in DNA and RNA in solid tumors and blood cancers. Indeed, Foundation’s tests retail for $7,500 (or less for bulk users), which is only about $2,500 more than the amount Myriad was charging for testing only BRACA genes. 

The litigation industry seldom lacks for people spinning an "issue," creating a faux "issue" or just plain spewing out talking points for some side without the burden of actual knowledge or adequate information.  A new example of spin and counter-spin arises as the Economist took a swing at patent law, patent trolls, NPES, etc. Patent lawyers of course responded. The latter article lost me when it suggested that the process for making tea might have been patentable back in the day. The joys of spin ….

Myriad Genetics has lost again in its efforts to claim patent protection for reading the sequence of the so-called BRCA genes associated with breast cancer.  This time, a federal judge in its home state denied its request for a preliminary injunction against another company that will sequence BRCA genes for about half the price charged by Myriad. The court rejected Myriad’s motion because it quite rightly found there is doubt Myriad can prove its patents are valid. The New York Times includes a good summary article with a link to the opinion.
The opinion begins with a cogent statement:
“On June 13, 2013, the Supreme Court issued a unanimous decision holding that “genes 
and the information they encode are not patent eligible simply because they have been isolated 
from the surrounding genetic material.” Association for Molecular Pathology v. Myriad 
Genetics Corp. (AMP), 133 S. Ct. 2107, 2120 (2013). This case arises in the aftermath of that 
decision.” 

 

Is litigation all bad? Apparently not, at least judging by the actions of corporate America. Thus, corporations continue to embrace revenue-generating litigation, and use of patent litigation as a strategic business tool. The latest example arises in federal court in Texas, where Apple, Microsoft, Blackberry, Ericcson and Sony are the wizards behind the curtain for multiple new patent claims involving internet advertising. The litigation is described here, with the introduction pasted below: 

"(Reuters) – The group that owns thousands of former Nortel patents filed a barrage of patent lawsuits on Thursday against cell phone manufacturers including Google, the company it outbid in the Nortel bankruptcy auction.


Rockstar, the consortium that bought the Nortel patents for $4.5 billion, sued Samsung Electronics Co Ltd, HTC Corp, Huawei and four other companies for patent infringement in U.S. District Court in Texas. Rockstar is jointly owned by Apple, Microsoft, Blackberry, Ericsson and Sony."