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  • Writer's pictureKirk Hartley

Patents and Law – Expert Panel Views on the Views of the US Supreme Court

As science grows, so do patent disputes – especially in the worlds of biotechnology and computers. The Supreme Court of the United States is paying attention, and recently has created a continuing flow of patent appeals from the Federal Circuit court created thirty years ago as a specialized appellate court to hear patent appeals. Some might say the stream of appeals is in part a product of Chief Justice Roberts’ desire to provide certainty for businesses (see this prior post for links to relevant articles). Interestingly, the Supreme Court’s recent path has included serial reversals of decisions of the Federal Circuit, a perhaps not surprising result.

The Supreme Court’s growing interest in patents, the reversals, and even the grants of certiorari (the appeal), raise interesting questions. For example, how cases are selected, when does the US government weigh in, and how the Court decides the cases. Some insights into these subjects are summarized in this new and highly informative post by Kevin Noonan at Patent Docs. The post summarizes a recent discussion of the patent cases by a truly learned panel. The panel was comprised of "former Solicitors General and Assistant Solicitors. [The panel} addressed recent Supreme Court precedent in patent law during the BIO International Convention last month. Moderated by former Federal Circuit Chief Judge Paul Michel, the panel consisted of Seth Waxman, former Solicitor General now at Wilmer Hale; Paul Clement, another former Solicitor General now at Bancroft PLLC; and Thomas Hungar, former Assistant Solicitor General now at Gibson Dunn LLP."

The post is well worth reading for many reasons. Among others, Mr. Noonan’s post distills out the views the panel articulated on substantive issues, and the tensions and economic conflicts in patent law. The outcomes will impact the where, when and how of research, investment, and value models for scientists. The outcomes also will impact economic and life and death issues in biotechnology research as scientists and businesses search for treatments for disease, and patent issues impact that process. For example, many assume that next year the Court will here important issues on whether patents are properly obtained for describing the sequences of genes, an issue and case covered in this prior post. There, the government weighed in against such patents.

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