Tuesday, April 29, 2014

Octane Fitness v. Icon Health & Fitness

On April 29, 2014, the United States Supreme Court issued a decision that eases the awarding of attorneys fees to penalize patently bad litigation behavior. Here is how the Supremes describe the controversy in Octane Fitness v. Icon Health & Fitness in the opinion Syllabus:
The Patent Act’s fee-shifting provision authorizes district courts to award attorney’s fees to prevailing parties in “exceptional cases.” 35 U.S.C. §285. In Brooks Furniture Mfg., Inc. v. Dutailier Int’l, Inc., 393 F. 3d 1378, 1381, the Federal Circuit defined an “exceptional case” as one which either involves “material inappropriate conduct” or is both “objectively baseless” and “brought in subjective bad faith.” Brooks Furniture also requires that parties establish the “exceptional” nature of a case by “clear and convincing evidence.” Id., at 1382. Respondent ICON Health & Fitness, Inc., sued petitioner Octane Fitness, LLC, for patent infringement. The District Court granted summary judgment to Octane. Octane then moved for attorney’s fees under §285. The District Court denied the motion under the Brooks Furniture framework, finding ICON’s claim to be neither objectively baseless nor brought in subjective bad faith. The Federal Circuit affirmed.
The Supremes held "The Federal Circuit’s formulation...overly rigid."  They clarified that
a district court may award fees in the rare case in which a party’s unreasonable conduct — while not necessarily independently sanctionable — is nonetheless so “exceptional” as to justify an award of fees.
In addition, the Court rejected
the Federal Circuit’s requirement that patent litigants establish their entitlement to fees under §285 by “clear and convincing evidence."
Instead, the Supremes explained that
[s]ection 285 demands a simple discretionary inquiry; it imposes no specific evidentiary burden, much less such a high one.
This decision rebalances the power to decide what constitutes an "exceptional" case away from the Federal Circuit, restoring considerable discretion to federal district courts.

Friday, April 25, 2014

Seeds Of Change At Cornell

On April 25, 2014, the Department of Plant Breeding and Genetics at Cornell University held the 3rd Annual Plant Breeding Symposium, ("Breeding Innovations & Policy:  Considering Diverse Stakeholders") cosponsored by SYNAPSIS (the Cornell Plant Breeding & Genetics Graduate Student Assocation) and DuPont Pioneer.  I was honored to be invited to speak at the conference.  Here is the abstract of my speech, entitled "Biology, Law, and Democratization as Seeds of Change for Agricultural Innovation":
The past decade has witnessed sea changes in both the science and law of agricultural biotechnology.  Accelerating growth in the power and precision of molecular biology, genomics, and bioinformatics offer myriad new tools for improvements in crop characteristics and cultivation methods. More fundamentally, the new field of synthetic biology represents a paradigm shift in how and by whom agricultural biology is to done. The law has evolved in parallel with, and often in reaction to, these scientific changes. The United States Supreme Court has weakened or ended the patenteligibility of isolated genomic DNA, products of physiology, biochemical assay methods, and process inventions involving steps dependent on human thought. Improved methods for measuring patent importance promise to demystify the value and liability risks of agricultural patent portfolios. Most disruptively, open, user, and collaborative innovation is vastly increasing participation in biotechnology. The result of new biotechnologies, altered legal landscapes, and changing patterns of participation is the transformation and democratization of agricultural innovation.
The great unresolved tension between open access, traditional, indigenous, and intellectual property regimes for governing rights to plant breeds and seeds was the dominant theme.  The range of views represented in the speakers' presentations resulted in a wonderful discussion of plant breeding and agricultural biotechnology.  Though we may not have reached intellectual synthesis of the level imagined by Titania, who says, in A Midsummer Night's Dream, "So doth the woodbine the sweet honeysuckle gently entwine," we did grapple with important issues in this vital field in the midst of the finest plant breeding and genetics scholars.

Tuesday, April 22, 2014

Unconventional Conventional

Over the past two weeks, students in my new "Biolaw" class have been presenting their own term projects.  These have run a wide gamut through the subject matter of biolaw, from blood donation to gender identity, patents on humans to management of the Antarctic, and behavioral ecology of criminal behavior to accounting for ecosystem services.

One presentation surprised me the most through its casual, though accurate, use of a word whose meaning has clearly been transformed over the past decade.  The subject was the role of law in settling conflicts between farmers growing genetically-engineered crops and those attempting to cultivate organic crops.  The presenter described GM-crops as "conventional."

When I first heard the descriptor "conventional," my mind reacted against the usage, initially deeming it inaccurate.  But, after I had let the meaning sink in for a few seconds, I realized that the world had linguistically shifted beneath my feet.  Genetically-engineered crops are now so typical as to be banal.  "Traditional" crops of the sorts favored by organic farmers are now strange and exotic.  Convention has rendered GM-agriculture conventional.

Friday, April 18, 2014

Synthetic Biology Standards And Intellectual Property

This week, Linda J. KahlLegal Program Director at the BioBricks Foundation, and I published an article entitled "BRINGING STANDARDS TO LIFE:  SYNTHETIC BIOLOGY STANDARDS AND INTELLECTUAL PROPERTY" in Volume 30 of the Santa Clara High Technology Law Journal.  Here is the abstract:
In aspiring to become a true engineering discipline for the biological sciences, the field of synthetic biology has a unique opportunity to create and encourage the widespread adoption of standards to enhance innovation and social impact in the field. This article presents a study of the standards setting efforts by the institutions, firms, governments, and individuals within the field of synthetic biology. 
Numerous standards have been proposed in synthetic biology, including those relevant to structure, function, description, measurement, data, information exchange, software, biosafety and biosecurity, and even law. At the present time, the adoption of technical standards has been relatively modest and no one technical standard appears to have dominated the field. Standards covering policies in biosecurity, by comparison, are more firmly established and biosecurity practices governing commercial orders for synthetic DNA have been widely adopted. 
Among standards-setting groups within the synthetic biology community, most have expressed a preference that standards remain open and accessible to the community as a whole. Recent developments, including the U.S. Supreme Court’s decision in AMP v. Myriad and the Leahy-Smith America Invents Act, could help give greater clarity to the scope of patent rights covering innovations and standards in synthetic biology. Copyright and trademark may provide alternatives mechanisms for conferring rights in synthetic biology inventions, setting and reinforcing standards, or promoting open innovation. 
Whether formal policies requiring the disclosure and licensing of property rights covering technical standards could be made mandatory or would ultimately be beneficial to the field of synthetic biology remain open questions. What is certain is that the synthetic biology community is unusually attuned to debates surrounding intellectual property and standards setting, and views its engagement in these debates as vital to ensure the continued success of synthetic biology.
A free PDF copy of the article is available here.

Wednesday, April 9, 2014

The 3D Printing Deluge

Hewlett-Packard ("HP") bestrides the printer market like a carbon copy collosus, accounting for almost 40% of all printers sold in 2013.  Now, HP intends to add another dimension to its reproductive arsenal by invading the market for 3D printing ("3DP").  Why enter the realm of additive manufacturing in 2014, one might ask?  Aside from the inducement of torrid growth in 3DP adoption by both consumers and companies, one reason may be the mass expiration of key additive manufacturing patents in 2013 and 2014.  Not only does 3D printing pose an existential threat to patent-protected artifacts, but patents that have heretofore held back the flood of additive manufacturing of almost any object imaginable are experiencing a mass extinction.  Expect an accompanying flood of intellectual property litigation to define the frontiers of this new world of making.

Tuesday, April 8, 2014

Vive Le Québec Canadien!

In his poem The Little Girl Saw Her First Troop ParadeCarl Sandburg suggested that "Sometime they'll hold a war and nobody will come."  Had the poet been in Montréal last night, he might have recast this sentiment as "Sometime they'll hold a secession and nobody will leave."  Canada was founded as Québec.  The very word "Canadian" is an expression of how francophone Canadians, who were Canadiens before there were Québecois, have viewed themselves since the first intrepid coureurs de bois set off to explore the entirety of North America long before the Corps of Discovery expedition.  Québec a toujours été au cœur du Canada.  On April 7, 2014, the citizens of Québec had a golden opportunity to express their democratic intent to become an independent country.  Instead, as they have always done before, they voted decisively to remain Canadiens.  With no apologies to Charles de Gaulle during his most culturally tone-deaf, historically ignorant, and imprescient moment, Vive Le Québec Canadien!