Thursday, May 18, 2006

Whither Ariad, whither patent law at the Supreme Court?

A May 18 post on PatentBaristas has some discussion on the Harvard/MIT/Whitehead patent (6,410,516), especially thorough about the re-examination thereof (90/007,503).

I've been interviewed a few times about the Ariad v. Lilly litigation. One person was pursuing an angle that the the Lilly lawyers lost the case. That is not a typical theme in the more lawyerly journals (lawyers don't want to see in print a story about how lawyers created a loss in an otherwise winnable case), but I do recall a recent story about the patent interference concerning the "Dolly the Sheep" patents that was unusually harsh toward a certain named patent lawyer.

PatentBaristas mentions the Amgen DJ action as to the Harvard/MIT/Whitehead patent. The tough part of going after the big guys is that they fight back, and weak patents, such as that of the University of Rochester on COX-2, get vaporized.

I've been drafting an article uniting themes in Ariad v. Lilly with some other cases, including Metabolite. HOWEVER, a recent blogpost about the potential that the "group of four" in eBay v. MercExchange might try to take down the Metabolite patent at the Supreme Court (instead of remanding) is making me wonder what might be going at the Supreme Court. For eBay, I was expecting an outcome more like that of the "group of three," and I had created a parody opinion modeled after Merck v. Integra.

The soft guidance of Merck obviously didn't happen in eBay. eBay creates more work for patent lawyers, and, if Integra wins its case in the end (as I suspect), there will be even more work, because there will be more uncertainty than ever.

It's a curious solution to issues of patent reform. Rather than solving the direct upstream problem (get the patent examination done right in the first place), one relaxes the downstream rules, so the picture gets fuzzier. Maybe there will be an injunction, maybe there won't be. Kinda depends on what I think about the patent (although I've determined it valid, it might be like a business method or a law of nature, so I'll discount it a bit) and the addiction the public has developed to the infringing product (if there's lots of infringing product, the public interest might be to continue the use, so I'll weight that factor for the infringer because he's been a very successful infringer). And the patentee does get money damages. Of course, patentee didn't get to pick who developed his invention, or how it developed, but patentee should be grateful because someone developed it.


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