Rock Chalk Trademark

On June 17, 2013, the Lawrence Journal-World published an article entitled "Trademark protection a constant concern for KU" that explores the efforts the University of Kansas ("KU") exerts to protect its trademarks, including the famous KU Jayhawk.  Reporter Matt Erikson interviewed me about trademark law for the article.  Here is an excerpt:

It’s up to trademark holders to make sure their marks aren’t used improperly, Torrance said. If someone uses your trademark without your permission, it’s up to you to put a stop to it. And if you go too long without doing so — especially if there’s a reasonable chance you know it’s going on — there’s no going back.

Winners of the NCAA men's basketball national championships in 1952, 1988, and 2008, holders of many records (e.g., most winning seasons - 95 - in NCAA history), and perennially ranked as one of, and often the very best of, the top men's NCAA basketball teams, the hoops Jayhawks confer tremendous value to KU's trademarks.  However, both fans and entrepreneurs often express their enthusiasm for the Jayhawks by reproducing Jayhawk logos or phrases without permission.  It is a delicate balancing act for KU to police its trademarks sufficiently to preserve their value without alienating the very people whose support is the very lifeblood of these trademarks.

Academic Post-Op Of Myriad

The leading patent law blog, Patently-O, solicited short reactions to the U.S. Supreme Court's June 13, 2013, AMP v. Myriad decision from patent law professors.  Patently-O published these micro-opinions here.  Here is mine:

Looking at the trend over the past decade, Andrew Torrance (Kansas) writes: "For better or worse, the Supreme Court's AMP v. Myriad decision caps a decade-long trend away from the patentability of the human body, human embryonic stem cells, human physiology, diagnosis of human disease, human thoughts, and, now, human genes."

Ironically, even though the Supreme Court left open the possibility that cDNA sequences might remain patent-eligible, those same sequences will often be patently-o(bvious) in light of existing genomics knowledge and the routine molecular biological techniques used to produce cDNA.

Myriad Ado About Myriad

Never before has the media made more fuss about a patent law court decision. Since the United States Supreme Court issued its opinion in AMP v. Myriad on June 13, 2013, newspapers, radio, television, and the web have been delirious about DNA. For those brave few who care about patent law, this has been wonderful. I have had a lot of fun doing a number of interviews about the Myriad decision over the past day. Two National Public Radio stations - KPR and KCUR - broadcast a story that included parts of an interview with Bryan Thompson, a very talented health reporter. Here is the audio of the story. Here is an excerpt of the transcript:

Professor Andrew Torrance specializes in biotechnology patent law at the University of Kansas. He says the ruling falls hardest on companies that have invested billions of dollars, hoping to profit from patents on human gene fragments like those that help reveal a person’s risk for breast cancer. 

“I think that its practical effect will be to lop many tens of billions of dollars off the investments that a lot of biotech and pharmaceutical companies—and even some universities—made in locating and sequencing and patenting these natural-source genomes," he says.

The Kansas City Star also conducted an interview, and ran an article about the landmark Myriad decision on its frontpage. Here is an excerpt from the June 14, 2013, edition of the newspaper:

Torrance agreed that “pharma and biotech will continue to make money.… The natural-source DNA money stream is coming to an end. It actually peaked in about 2001. Now you have to do more hard work to design genes and get them to do what you want them to do.”

Although the importance of the Myriad decision will take years to reveal itself, the public and the media both appear to sense its importance to innovation, biotechnology, and medicine.  Patent law should bask in its brief time in the limelight, for it will soon return to its usual position well outside the public eye.

Due Diligence On The Myriad Decision

Today (June 13, 2013), Due Diligence, a daily afternoon news program on Voice Of Russia Radio, broadcast a story entitled "Supreme Court decision AMP v. Myriad SCOTUS rules that human DNA cannot be patented."  I had the honor of being interviewed by Due Diligence host Carmen Russell-Sluchansky.  Here is a recording of the broadcast.

Patents And Patients

Owners of patents claiming isolated or purified DNA sequences plucked from naturally-occurring genomes are justified in suffering from triskaidekaphobia.  Today, June 13, 2013, they suffered a bodyblow when the United States Supreme Court declared these types of patents invalid as claiming unprotectable subject matter.  The decision, in AMP v. Myriad, caps a long trend in which patents claiming aspects of humans, their bodies, their physiology, and their thoughts, have been struck down as patent-ineligible.  I was asked to write about this trend earlier this year by SCOTUSblog.  Myriad Genetics owns several patents that claim variants of the BRCA gene (that is, BRCA1 and BRCA2) indicative of heightened risk for breast or ovarian cancer.  By necessity, the patents in suit claim variants with the same nucleotide sequences as those occurring within their human genome sources.  The Court minimized any inventive contribution made by the "inventors" of Myriad's claimed sequences:

Myriad did not create anything.  To be sure, it found an important and useful gene, but separating that gene from its surrounding genetic material is not an act of invention.

Although this analysis seems to mix concepts of patent subject matter with those of novelty and nonobviousness, the result is that

A naturally occurring DNA segment is a product of nature and not patent eligible merely because it has been isolated...

The Court appeared to contemplate the patentability of synthetic DNA, even minimally-modified cDNA.  In addition, it explicitly noted that the patentability of methods using isolated or purified DNA were not at issue in the case, perhaps because the Court had already considered the patent-eligibility of similar methods in its 2012 Mayo v. Prometheus decision.

One highly-distinctive feature of the decision was a very short concurrence by Justice Antonin Scalia, where he expressed how overwhelmingly difficult and complex the molecular biology underlying the Court's decision is.  There, he confessed that

I am unable to affirm those details on my own knowledge or even my own belief.

Although lack of mastery of scientific facts is seldom admitted by judges, it is most admirable that a member of the Supreme Court has been so candid.

Although the world did not end today for the biotechnology and pharmaceutical industries, they and their stock prices now feel a chill wind blowing.  Shares of Myriad Genetics alone traded down more than 5% on the day of the decision, June 13, 2013, lopping off many millions of dollars in market capitalization.  More ominously for gene patent owners, within hours of the Court's decision, alternative providers of the BRCA1 and BRCA2 diagnostic tests, such as DNATraits, a division of Gene By Gene, Ltd., began to advertise substantially lower prices to patients.

It is a brave new world for genes.  Patents remain a strongly-viable option for modified or designed synthetic DNA sequences.  However, the gene rush of patenting unmodified DNA sequences plucked from human genomes has come to an end.

Myriad Opinions

In anticipation of the imminent United States Supreme Court decision in Association for Molecular Pathology v. Myriad Genetics, on June 6, 2013, the New York Times blog ROOM for DEBATE featured five diversely-divergent opinions about whether or not human genes should be patentable.

Stanford Deextinction On PBS

The website of San Francisco PBS television station, KQED, featured a discussion of the Stanford Deextinction conference that took place on May 31, 2013, at Stanford Law School. Here is an excerpt:

“I think one of the reasons this issue has bubbled to the surface so quickly is that the technology is converging with the coolness of the idea of bringing things back, mixing with a sense of guilt we feel with driving things extinct,” University of Kansas law professor Andrew Torrance told me. But de-extinction raises several “definitional conundrums,” he said in this talk. Are de-extinct organisms GMOs? Invasive species?

There will be much more to come on deextinction.

Barack Obama: Troll Hunter

United States President Barack Obama announced on June 4, 2013, a series of proposals aimed at defanging organizations euphemistically called "patent assertion entities" and derisively titled "patent trolls."  Among other steps announced in a press release published by the White House - "Fact Sheet: White House Task Force on High-Tech Patent Issues" - are three "Executive Actions" of particular note:

1.  Making “Real Party-in-Interest” the New Default. Patent trolls often set up shell companies to hide their activities and enable their abusive litigation and extraction of settlements. This tactic prevents those facing litigation from knowing the full extent of the patents that their adversaries hold when negotiating settlements, or even knowing connections between multiple trolls. Today, the PTO will begin a rulemaking process to require patent applicants and owners to regularly update ownership information when they are involved in proceedings before the PTO, specifically designating the “ultimate parent entity” in control of the patent or application. 

2.  Tightening Functional Claiming. The AIA made important improvements to the examination process and overall patent quality, but stakeholders remain concerned about patents with overly broad claims — particularly in the context of software. The PTO will provide new targeted training to its examiners on scrutiny of functional claims and will, over the next six months develop strategies to improve claim clarity, such as by use of glossaries in patent specifications to assist examiners in the software field. 

3.  Empowering Downstream Users. Patent trolls are increasingly targeting Main Street retailers, consumers and other end-users of products containing patented technology — for instance, for using point-of-sale software or a particular business method. End-users should not be subject to lawsuits for simply using a product as intended, and need an easier way to know their rights before entering into costly litigation or settlement. Today, the PTO is announcing new education and outreach materials, including an accessible, plain-English web site offering answers to common questions by those facing demands from a possible troll.

That cinematic classic Abraham Lincoln:  Vampire Hunter may have inspired a sequel:  Barack Obama:  Troll Hunter.

Cheeky Police And DNA

The United States Supreme Court decided a criminal case, Maryland v. King, on June 3, 2013, that hinged on whether or not a DNA sample obtained while processing an arrested crime suspect can pass muster as reasonable under the Fourth Amendment of the U.S. Constitution.  The Court held that, like fingerprinting and photographing, a DNA sample derived from a routine cheek swab can be a reasonable part of the process of booking a suspected criminal.  The Court described the facts of the case as follows:

After his 2009 arrest on first- and second-degree assault charges, respondent King was processed through a Wicomico County, Maryland, facility, where booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime. He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment, but the Circuit Court Judge found the law constitutional. King was convicted of rape. The Maryland Court of Appeals set aside the conviction, finding unconstitutional the portions of the Act authorizing DNA collection from felony arrestees.

Here is a summary of what the Court decided:

When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

A good criminal defense attorney routinely advises her client to keep her mouths shut to avoid inadvertently saying things damaging to her assumed innocence.  Now, the Supreme Court has given criminal defendants another excellent reason not to open their mouths.

Deextinction In The San Jose Mercury And The Australian

Interest in the Stanford deextinction conference held on May 31, 2013, reached from Silicon Valley to Australia. In one article entitled "Extinct Species Revival Raises Hopes, Fears," in the San Jose Mercury, and a sister article entitled "Extinct Species Revival Raises Hopes," in The Australian, various issues raised during the conference were discussed. Here is an excerpt:

Passenger pigeons once numbered in the billions, blackening the skies and inspiring naturalists like John James Audubon, John Muir and Aldo Leopold. 

They had vanished by the first World War, victims of hunting and habitat loss. 

But resurrected flocks reintroduced into a modern environment could be an invasive species, noted Andrew Torrance of the University of Kansas Law School. 

They would also be genetically modified organisms, subject to federal regulation.

Deextinction is growing in the Valley, Down Under, and beyond.