This article details the “10-year-long saga” concerning whether Dolly the Cloned Sheep, the first mammal cloned from an adult cell, could be patented. In 2014, the Court of Appeals for the Federal Circuit ruled against granting a patent to Dolly’s creators in In re Roslin Institute. Though Dolly’s creators did receive a patent on the method used to create Dolly, they were denied a patent on Dolly herself.

The Court of Appeals aligned its decision with past cases, such as Association for Molecular Pathology v. Myriad Genetics and even Diamond v. Chakrabarty. Essentially, Dolly could not be patented because she was identical to animals found in nature, her “genetic identity to her donor parent render[ed] her unpatentable.”

The article went on to discuss the broader potential implications of the decision as related to biomedical research. As a result of the case, some feared that if the Patent and Trademark Office is unwilling to grant patents on human-made products that are genetically the same as products of nature, then personalized medicine will not continue to be researched. This could have detrimental effects on ideas like cells modified to resemble human stem cells or lab-grown organs. Other scholars noted that perhaps the case would not have such far-reaching consequences, due to the fact that this case was broadly drafted.

In our continued discussion of patent law, I found this article entitled, “How Much Has the Supreme Court Changed Patent Law” to offer an interesting take on the impact of SCOTUS decisions on patent law. The author, Paul Gugliuzza, is responding to an article by Judge Dyk which claims that Supreme Court’s decision have had a major impact on patent law. Dyk cites the 70% reversal of the Federal Circuits decisions as evidence for SCOTUS’ impact. But Paul thinks the Supreme Court’s impact has been more limited. He cites the lack of cases involving fundamental legal doctrines of patent law and the minimalist approach to opinion writing taken by the Supreme Court as two reasons for the lack of impact. Paul suggests “that the Supreme Court may be too focused on ares of patent law with little potential to fix key problems in the patent system and that the Court often limits the impact of its decision by inadequately explaining how lower courts and the PTO should implement them.” To Paul, this had made the court “content to nibble around the edges of patent law.”

Following up on our last class, I found this article and the case it discusses interesting for various reasons. It indicates to me that even the largest companies might still have difficulties to declare questionable (e.g. because rather obvious) patents invalid. Furthermore, it did not surprise me that this case again was against a patent troll.

Former CEO of Uber, Travis Kalanick, is back; not at Uber, but at another startup called City Storage Systems. This startup, formerly, CloudKitchen. is focused on repurposing real estate.  He apparently invested $150 million and will be the new CEO. I wasn’t surprising to me that he is the new CEO of another startup (since it seems like the same players tend to be involved in business ventures). What was surprising though was the type of startup. Check it out here!

I found this case while searching for recent tendencies in the Supreme Court’s holdings regarding patent protection. In KSR International Co. v. Teleflex Inc., the Supreme Court overthrows a Federal Circuit decision on how to determine “obviousness” of a new invention, thereby rejecting the Federal Circuit’s test and establishing a new “common sense” standard. The Supreme Court’s standard for obviousness is lower, hence, makes it easier to challenge a patent.

I found the case interesting, even though we haven’t discussed the specific requirements for patentability in clase, mainly due to 2 reasons:

1. It is again en example where the Supreme Court is willing to reject a solution found by the Fed. Cir. to “go its own way.”

2. For me, the case indicates a general tendency for lower IP protection, at least in the context of patents, which might be to some extent caused by the misuse of patents by patent trolls.

https://harvardlawreview.org/wp-content/uploads/pdfs/ebay_v_mercexchange.pdf

This is a nice article detailing the decision in Ebay Inc. v. MercExchage. The conclusion drawn from the author is that the impact of the decision does not leave a clear road for those seeking patent protection by way of an injunction. The Supreme Court rejected a rule that allowed for a presumption of warranting an injunction (that was basically the holding of the district court). However, the opinions (of which there were many concurring), do not necessarily provide a much higher barrier for receiving an injunction. The Court embraced a four-factor test for determining an injunction’s availability: including factors of irreparable harm likely-hood and what is in the best interest of the public. The Court also relied heavily on the past practices of leaning toward injunctions in the patent-infringement area. However, as the author notes (and as I think Justice Kennedy’s opinion explores nicely), the ease with which injunctions may be granted may not be as high as it has been in the past. In exploring the third prong of the four-factor test (interest of public), Kennedy notes that in today’s world, there is strategic accumulation of valuable IP for purposes of negotiation. He also notes that “business patents” are highly suspect. Implicitly, protecting IP in these situations produces a different societal impact. These factors also affect the harm associated to the parties trying to protect their property.

The authors conclude by saying that the predictive value of getting an injunction in this area is unclear. However, they nicely lay out the factors a court might, or should, consider.

As time continues, I wonder what direction the protection of IP will take. Although the Court embraced a less-protective rule on it’s a face, it also focused heavily on the protection executed in the past. Will Kennedy’s suggestion of looking at the circumstances of today against those of the past continue to play out in the future? And if so, will they do so in a different degree or manner?

Lots of news about Blackberry – somewhat surprisingly….

https://www.google.com/search?q=blackberry+RIM&rlz=1C1GGRV_enUS760US760&source=lnms&tbm=nws&sa=X&ved=0ahUKEwja8b3xqvvZAhVD-qwKHZNIBRMQ_AUICigB&biw=1455&bih=655&dpr=1.1

A lot of people wrote Blackberry (RIM) off after the advent of the smartphone. Can they survive? At least as of last fall, some were saying yes…

http://money.cnn.com/2017/09/28/investing/blackberry-earnings/index.html

In light of the class readings regarding contemporary Supreme Court decisions of Patent Law, I found an interesting law review article that argues that the Patent System is outdated. The author contends that the Patent System as we know it today was built upon traditional notions of innovation being limited to an individual effort. The author identifies innovation today as being a group movement, or “entity” and that the Patent System is thus ill-equipped to accommodate modern innovations.

This is an interesting perspective particularly in regards to the Ebay v MercExchange LLC case. The innovation at issue there was patent rights for an e-commerce marketplace. The court referred to the Copyright Act and Fox Film Corp v Doyal, where the holding emphasized that copyrights and patents are to reward the “skill of individuals” (emphasis added). This type of reasoning is exactly what the author of this law review article is talking about when arguing that the Patent System no longer parallels with modern, group type innovation.

This article talks about the repercussions of the decision on eBay Inc. v.MercExchange, L.L.C.