Friday, October 31, 2014

Consumer Watchdog / PubPat seek Supreme Court review of standing issue in stem call case concerning WARF's US 7,029,913

In the year 2008, IPBiz discussed the challenge to WARF's US Pat. 7,029,913 made by PubPat and Consumer Watchdog. See post
How significant was the PubPat wiff on re-exam of US 7,029,913?

A headline in the San Diego Union-Tribune on October 30, 2014 Stem cell patent to reach Supreme Court actually means that a petition for cert is being filed, not that the Supreme Court has agreed to hear the case. The legal issue is NOT about the patenting of the stem cell material, but rather about whether Consumer Watchdog has standing to bring the case.

Earlier in 2014, PatentDocs described the issue presented in the case, and the viewpoint expressed by the Federal government:

While noting that "Congress may -- and commonly does -- authorize administrative agencies to take action or issue decisions at the behest of parties who lack any particularized interest in the subject matter of the proceeding," the government states that "[w]hen the petitioner in such a proceeding later seeks judicial review in an Article III court, . . . 'the constitutional requirement that it have standing kicks in.'" The government suggests that in many cases, the petitioner's standing to appeal will be apparent. For example, the brief notes that if the Board had determined that the '913 patent was unpatentable, "there would have been little doubt regarding WARF's standing to appeal that adverse decision." However, the government argues that Consumer Watchdog cannot appeal the Board's decision affirming the patentability of the '913 patent "unless it can identify some particularized, real-world consequence of that decision for Consumer Watchdog itself." Although "Consumer Watchdog is plainly adverse to WARF and believes the ’913 patent to be invalid," the brief asserts that this alone is insufficient to demonstrate the existence of a justiciable case or controversy. The government explains that Consumer Watchdog "claims no commercial interest in the subject matter of the ’913 patent; it faces no plausible risk of an infringement claim; it is neither a prospective competitor nor a prospective licensee of WARF[; n]or does Consumer Watchdog assert any basis for associational or representative standing." As a result, the government contends that Consumer Watchdog lacks standing to appeal the Board's reexamination decision because, "as far as the organization's own concrete interests are concerned, it does not matter whether PTO got the right answer."

See WARF's arguments against standing for Consumer Watchdog.

Thursday, October 30, 2014

Teva optimistic about outcome in Teva v. Sandoz (!)

Note Reuters post Teva optimistic U.S. top court to rule in favor of MS drug patent with text

Teva Pharmaceutical Industries is optimistic the U.S. Supreme Court will decide in its favor regarding patent protection for Copaxone, its multiple sclerosis treatment, Chief Executive Erez Vigodman said on Thursday.

IPBiz suspects, no matter what legal formalism is adopted, Teva will lose the case.

Harvard's terminal disclaimer argument fails at CAFC

The bottom line in Harvard vs. Lee:

We find that the record contains a rational basis to
support the PTO’s factual finding that Harvard paid the
terminal disclaimer fee. (...)

We conclude that the evidence as a whole provides a
rational basis for the PTO’s conclusion that the terminal
disclaimer fee was paid. As such, we find that the district
court properly concluded that the PTO’s decision was not
arbitrary or capricious. We affirm.

More on Rader's "death squads"

About one year ago, on Oct. 29, 2013, Judge Rader made his remark about the PTAB "death squads":


" the PTAB, there will soon be as many as 300 administrative patent judges “acting as death squads, killing property rights.”


IPBiz link: One year anniversary of Rader's "death squads" remark

Now, on October 30, 2014, one has the post Developing a patent portfolio that can withstand the ‘death squad’ for patents

One notes that the Patent Board affirms the examiner more than 50% of the time.

Tuesday, October 28, 2014

Google Doodle tribute to Jonas Salk questioned in view of the patenting of the Google Doodle

See story at National Post suggesting the Google Doodle celebrating Jonas Salk was rich with irony [text: Google spent 10 years lobbying to get Google Doodles patented, and eventually succeeded. ]

But also see the IPBiz post Contemplation of patenting the Salk vaccine prior to the quote "Could you patent the sun?”

Thus, the Google Doodle is doubly ironic. Google patented the Doodle AND Salk looked into patenting the vaccine.

See also post by Michael Hiltzik.

Monday, October 27, 2014

Google has obtained 14% of US track 1 patents that have issued

The Washington Post reports that Google has obtained more track 1 patents than any other company, in fact 14% of all track 1 patents issued to date.

Hussein is second.

Sunday, October 26, 2014

60 Minutes on October 26, 2014

Lee Silver of Genepeeks was interviewed. Silver is the sole inventor of US Patent 8,805,620.

The first claim is

1. A method of selecting a donor or reproductive partner for a potential parent from a pool of sperm donors, or from a pool of oocyte donors or from a pool of potential reproductive partners, the method implemented by a computer processor executing program instructions, the method comprising the steps of: (a) using the processor, generating a recipient haplopath H.sub.i.sup.recipient={h.sub.1, h.sub.2, . . . , h.sub.N} including a single allele h.sub.x.di-elect cons.(1,2) of a genotype at each of a plurality of loci (1, . . . , N) from a recipient genome profile of a potential parent; (b) using the processor, generating a donor haplopath H.sub.i.sup.donor={h.sub.1, h.sub.2, . . . , h.sub.N} including a single allele h.sub.x.di-elect cons.(1,2) of a genotype at each of the plurality of loci x=1, . . . , N from a donor genome profile of a member of a pool of sperm donors, oocyte donors or potential reproductive partners; (c) using the processor, combining said recipient haplopath H.sub.i.sup.recipient with said donor haplopath H.sub.i.sup.donor to generate a virtual progeny genome sampling ##EQU00005## including two alleles h.sub.x.sup.recipient and h.sub.x.sup.donor of a genotype at each of the plurality of loci x=1, . . . , N for a potential progeny; (d) using the processor, comparing genotypes of said virtual progeny genome sampling to one or more databases of genotype-phenotype associations to determine a likelihood of expression of one or more phenotypes for the potential progeny having said virtual progeny genome sampling; and (e) repeating steps (a)-(d) for a plurality of recipient and donor haplopaths from, respectively, the recipient and donor potential parents i=1, . . . ,p to generate a virtual progeny genome G.sup.VP including a plurality of the virtual progeny genome samplings G.sup.VP=G.sub.1.sup.VP, G.sub.2.sup.VP, . . . , G.sub.p.sup.VP); (f) generating probabilities or probability distributions for said potential progeny expressing said one or more phenotypes based on the likelihoods determined for the plurality of virtual progeny genome samplings in the virtual progeny genome G.sup.VP; and (g) repeating steps (a)-(f) for each member of said pool of sperm donors, oocyte donors or potential reproductive partners.

Mark Hughes of a Genesis Genomics was also interviewed. Hughes had a problem at NIH back in 1997.

Saturday, October 25, 2014

On government involvement in patent acquisition

An op-ed in the Lincoln, Nebraska Journal-Star by a former Novartis employee includes the text:

Patent trolling has proven so profitable that it has lured foreign governments into the field. China, Taiwan, Japan and South Korea all have created their own companies that exist for the sole purpose of obtaining patents and suing companies over them. These companies are more dangerous than regular Patent Assertion Entities (PAEs), which is what patent trolling companies are called, because they have the financial backing of foreign governments. Their resources are virtually unlimited.

The Chinese Government’s troll is probably the most ominous threat. China is known for its lack of respect for intellectual property rights. In April 2014, the United States Trade Representative included China in its list of 10 “Priority Watch List” countries, which threaten innovation and creativity through their abuse of intellectual property rights. Portentously it was in April of this year that China also launched its government controlled troll, which they are calling Ruichuan IPR Funds. If China were able to make it on this list of the 10 most concerning offenders before their government got into patent trolling, just imagine of what they are capable now?

Friday, October 24, 2014

Apple after jury verdict: GPNE is nothing more than a “patent troll”

Bloomberg reported on Apple after a jury verdict against GPNE:

Kristin Huguet, a spokeswoman for Cupertino, California-based Apple, said in an e-mail after the verdict that GPNE is nothing more than a “patent troll” attempting to “extort money from Apple for 20-year-old pager patents that have expired, wasting time for everyone involved.”

“Patent troll” is an often-derisive term referring to firms that acquire patents for the purpose of demanding high royalties or winning settlements from established manufacturers. Such firms have been the target of intense lobbying in Washington by technology companies looking for the fastest and cheapest way to dispose of such cases.

Lex Machina, related to Mark Lemley, was referenced for a report on patent litigation:

Of the 6,092 patent-infringement suits filed nationwide, a 12 percent increase over the previous year, 10 companies -- all patent monetization entities or, more pejoratively labeled, patent trolls -— were responsible for almost 13 percent,

Michelle Lee speaks to AIPLA on Oct. 23 about unified patent classification system

The Bloomberg post Patent Offices Seek to Plug Global System's Black Holes contains several patent news items, including the goal of unifying patent classification systems among the world's patent offices. Michelle Lee, now nominated as the permanent director of the USPTO, was quoted:

“That should make patent examination both faster and better, supporting our focus on patent quality,” Michelle Lee, the deputy director of the U.S. patent office, said in prepared remarks delivered today [Oct. 23] to the American Intellectual Property Law Association [AIPLA] conference in Washington

The post also mentioned Google translate:

A program developed by Google Inc. (GOOG) helps translate documents from 32 languages to determine if an idea is actually new, eliminating what could be “black holes in the system,” Battistelli said. As many as 20,000 translation requests are being made each day, mostly between English and Chinese or English and German, he said.