Wednesday, August 12, 2020

Ô Kamala!

La candidate à la vice-présidence des États-Unis, Kamala Harris, a obtenu son diplôme de l'école secondaire Westmount à Montréal en 1981.  Elle est presque aussi canadienne que Ted Cruz. Le Canada est-il devenu une école de finition pour la présidence américaine?  Merveilleux!

Monday, August 10, 2020

Leafing Lizards

Since 2005, a population of lizards has kept me company as I read on my front porch.  They pop out of and dive back into cracks between bricks of my front pathway.  While outside their burrows, they forage frenetically through leaf litter.  Yesterday, I spotted the largest individual I had ever seen.  I managed to take some closeup photographs of this big dark brown and black lizard, one of which is reproduced below. 

Broad-Headed Skink (Plestiodon laticeps)

I formerly identified these lizards as Common Five-Lined Skinks (Plestiodon fasciatus), in part because the smaller ones have five cream-colored stripes on their backs and sides, and sometimes have bright blue tails.  However, close scrutiny of my new photographs has changed my mind.  Now I think my lizards are Broad-Headed Skinks (Plestiodon laticeps), which can sport stripes and tails similar to those of their close relative, the Common Five-Lined Skink, but tend to be considerably larger, and have five scales on their upper lips between their noses and eyes.  The main challenge in identifying these lizards has been their constant activity, vigilance, and impressive speed.  No lounge lizards they.

Thursday, July 16, 2020

Dr. Fauci Speaks

Dr. Anthony S. Fauci is Director of the National Institute of Allergy and Infectious Diseases ("NIAID").  This role has made him a medical science and policy leader in the struggle against SARS-CoV-2, as well as an undeserving lightning rod his opponents have struck repeatedly.  On July 15, 2020, The Atlantic published a revealing interview with Dr. Fauci.  It's well worth reading.

Wednesday, July 15, 2020

Legal Information Wants To Be Free

The amazing David L. Schwartz (Northwestern Law School) has coauthored a clarion call in the journal Science to make legal information freely available to all, allowing rigorous analysis and informed correction of the law.  As the authors point out,
In the United States, a range of technical and financial obstacles blocks large-scale access to public court records—all but foreclosing their use to direct policy. Yet a growing body of empirical legal research demonstrates that systematic analyses of court records could improve legal practice and the administration of justice. And although much of the legal community resists quantitative approaches to law, we believe that even the skeptics will be receptive to quantitative feedback—so long as it is straightforward, apolitical, and incontrovertible.
If implemented successfully, this proposal would allow data-driven legal decisions and legal reform.  Not everyone may be happy about this development, though its benefits are likely to be substantial.  In fact, as the authors suggest, “although much of the legal community resists quantitative approaches to law, we believe that even the skeptics will be receptive to quantitative feedback—so long as it is straightforward, apolitical, and incontrovertible.”  As Sherlock Holmes warns in A Scandal In Bohemia, “It is a capital mistake to theorize before one has data.”

Wednesday, July 8, 2020

Articles Of Trade

On July 8, 2020, Mexican President Andrés Manuel López Obrador visited United States President Donald J. Trump at the White House to mark the new United States-Canada-Mexico Agreement ("USMCA")(Accord Canada–États-Unis–Mexique (ACEUM)/Canada-United States-Mexico Agreement ("CUSMA") in Canada, and Tratado entre México, Estados Unidos y Canadá (T-MEC) in Mexico), which came into the force on July 1, 2020Canadian Prime Minister Justin Trudeau was conspicuous by his absence.  The full text of the USMCA is available here.  The 89 articles (plus additional annexes) concerning intellectual property, in USMCA Chapter 20, including new rules for geographical indications, are here, replacing the mere 21 intellectual property articles (plus annexes) found in Chapter 17 of the North American Free Trade Agreement ("NAFTA").  Whether or not USMCA members trade more articles, these countries now have more trade articles.

Tuesday, July 7, 2020

Murine Insufficiency

On June 24, 2020, the United Kingdom Supreme Court ("UK Supremes") gave judgment in Regeneron Pharmaceuticals Inc (Respondent) v. Kymab Ltd (Appellant), a case concerning European Patent (UK) No. 1 360 287 (the "'287 patent") and its divisional, European Patent (UK) No 2 264 163.  Claim 1 of the '287 patent (upon whose sufficiency all three claims at issue in this appeal depended) is as follows:
A transgenic mouse that produces hybrid antibodies containing human variable regions and mouse constant regions, wherein said mouse comprises an in situ replacement of mouse VDJ regions with human VDJ regions at a murine chromosomal immunoglobulin heavy chain locus and an in situ replacement of mouse VJ regions with human VJ regions at a murine chromosomal immunoglobulin light chain locus.
Here is the question as framed by the UK Supremes:
whether a product patent, the teaching of which enables the skilled person only to make some, but not all, of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range, if and when they could be made.
A majority of the UK Supremes held that claim 1 lacked sufficiency, explaining
it is settled law, in relation to a product claim, that sufficiency requires substantially the whole of the range of products within the scope of the claim to be enabled to be made by means of the disclosure in the patent, and this both reflects and applies the principle that the contribution to the art is to be measured by the products which can thereby be made as at the priority date, not by the contribution which the invention may make to the value and utility of products, the ability to make which, if at all, lies in the future.
The UK Supremes found the three patent claims at issue in this case as poor in sufficiency as a transgenic church mouse.

Thank you to PatentlyO for bringing this decision to my attention.

Monday, July 6, 2020

O Say Can He Play!

For the 2020 Fourth of July holiday, Japanese Consul General in New York, Kanji Yamanouchi, offered this wonderful Jimi Hendrix-inspired tribute to his host country, the United States of America:  Consul General Yamanouchi can really shred his Fender Stratocaster.  As Wayne and Garth would surely say, "We are not worthy!"

Thursday, June 25, 2020

In Memoriam Rose Paterson

I was greatly saddened this morning to learn that Rose Paterson had passed away.  I had the pleasure of meeting her three years ago while we and our families were both visiting her brother in Northumberland.  She was a lovely and talented person, who, among her accomplishments, once crossed Mongolia on horseback.  As she lived near Ellesmere, Shropshire, here is her obituary in the Shropshire Star.  My sympathy to her family.

Tuesday, June 23, 2020

Digital Evolution

Cloutier et al. (Nature, March 18, 2020) recently described a fossil fish (pardon the paraphyly), named Elpistostege watsoni, whose skeletal remains suggest the emergence of digits:
Here we report a 1.57-metre-long articulated specimen of Elpistostege watsoni from the Upper Devonian period of Canada, which represents—to our knowledge—the most complete elpistostegalian yet found. High-energy computed tomography reveals that the skeleton of the pectoral fin has four proximodistal rows of radials (two of which include branched carpals) as well as two distal rows that are organized as digits and putative digits.
Never has there been a better reason to work fingers to the bone.

Monday, June 22, 2020

Et Tu, Okmok?

A June 22, 2020, article in the journal Proceedings of the National Academy of Sciences, entitled Extreme climate after massive eruption of Alaska’s Okmok volcano in 43 BCE and effects on the late Roman Republic and Ptolemaic Kingdom, suggests that the eruption of political unrest following the assassination of Julius Caesar in 44 B.C. may have been followed by climate unrest unleashed by a massive Alaskan volcano:
The assassination of Julius Caesar in 44 BCE triggered a power struggle that ultimately ended the Roman Republic and, eventually, the Ptolemaic Kingdom, leading to the rise of the Roman Empire. Climate proxies and written documents indicate that this struggle occurred during a period of unusually inclement weather, famine, and disease in the Mediterranean region; historians have previously speculated that a large volcanic eruption of unknown origin was the most likely cause. Here we show using well-dated volcanic fallout records in six Arctic ice cores that one of the largest volcanic eruptions of the past 2,500 [years] occurred in early 43 BCE, with distinct geochemistry of tephra deposited during the event identifying the Okmok volcano in Alaska as the source.
This study, by McConnell et al., suggests that the Roman Republic may have been left quite literally on the ash heap of history.

Saturday, June 20, 2020

Thinking Outside The Box

I discovered this beautiful little chelonian today, which made my day.
Ornate Box Turtle (Terrapene ornata ornata (Agassiz, 1857))

Wednesday, June 17, 2020

Shell Shock

Nature magazine reports that palaeontologists may have cracked the egg-laying behavior of several prehistoric amniotes.  Rather than hard, at least some terrestrial dinosaur eggs may have been soft-shelled, while it now appears possible that some prehistoric marine "reptiles" (pardon the paraphyly) laid their eggs on land.  Such paradigm shifts foul the nests of prior hypotheses.

Monday, June 15, 2020

Two Wings Fly Together

The United States Supreme Court ("Supremes") released a remarkable decision on June 15, 2020, concerning equality before the law.  In the case of Bostock v. Clayton County, Georgia, a robust majority of six justices, including all four justices generally regarded as leaning leftward alongside two justices usually regarded as learning rightward (that is, Chief Justice John Glover Roberts and Associate Justice Neil McGill Gorsuch), agreed on a decision written by Justice Gorsuch.  Here is the essence of their decision:
Sometimes small gestures can have unexpected consequences.  Major initiatives practically guarantee them.  In our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964.  There, in Title VII, Congress outlawed discrimination in the workplace on the basis of race, color, religion, sex, or national origin.  Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear.  An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result.  Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees.  But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.
Given its bipartisan nature and decisive mathematics, this decision has now settled a fundamental issue of equal rights for the foreseeable future.  Justices Alito, Thomas, and Kavanaugh dissented from the majority decision.

Friday, June 12, 2020

Reflection Inflection Point

The environment blog YaleEnvironment360 recently published a thoughtful and timely essay, entitled When Social Distancing Ends, Will We Rethink the World We Want?, by Bill McKibben.  With reference to the current SARS-CoV-2 pandemic, McKibben notes that
We are on the closest thing ever to a worldwide meditation retreat, with billions finding time to think about their lives.
We having examined our lives and society, McKibben considers what we might decide to make of our future.

Thursday, June 11, 2020

SARS-CoV-2 Pathogenicity

The Proceedings of the National Academy of Sciences ("PNAS") published an article entitled "Genomic determinants of pathogenicity in SARS-CoV-2 and other human coronaviruses", by Ayal B. Gussow et al., on June 10, 2020.  The article explores
crucial genomic features that are unique to SARS-CoV-2 and two other deadly coronaviruses, SARS-CoV and MERS-CoV [and that] correlate with the high fatality rate of these coronaviruses...
This short article is well worth reading.

Wednesday, June 10, 2020

Tyrannosaurus Lex

On May 20, 2020, in Murray v. BEJ Minerals, the Supreme Court of Montana ("Montana Supremes") granted custody of a Tyrannosaurus rex and bits of a Triceratops.  The legal issue, as framed by the United States Court of Appeals for the 9th Circuit, is
Whether, under Montana law, dinosaur fossils constitute “minerals” for the purpose of a mineral reservation?
The Montana Supremes held as follows:
We conclude that, under Montana law, dinosaur fossils do not constitute “minerals” for the purpose of a mineral reservation.  The ordinary and natural meaning of “mineral”—as it is used in the context of a general mineral reservation and mineral transactions—involves resources such as hard compounds, oil, or gas, mined as a raw material, to be used for further processing, refinement, and economic exploitation.  Although a material’s mineral content may render the material rare and valuable, and therefore within the ordinary and natural meaning of “mineral,” dinosaur fossils are not considered rare and valuable because of their mineral properties; rather, fossils are valuable because of characteristics other than mineral composition.  Finally, dinosaur fossils’ relation to the surface, and the effect their removal has on the value of the surface estate, is the final factor in determining dinosaur fossils to be outside the ordinary and natural meaning of “mineral,” as that term was used in the [current and prior land owners'] mineral deed.  We decline to stretch the term “mineral” so far outside its ordinary meaning as to include dinosaur fossils.
In her vigorous dissent, Justice Ingrid Gustafson pointed out that "The dinosaur fossils here...have a 100% mineral composition."  However, in Montana at least, this legal theory about such wondrous fossils has now gone the way of the dinosaurs.

Monday, June 8, 2020

Technology King Arthur

The last book I was able to sign out from Dewey Library before MIT shut down in March 2020 was THE NATURE of TECHNOLOGY - What It Is and How it Evolves, by W. Brian Arthur.  I love it.  I do not agree with everything in his theory of the structure and evolution of technology, but I do find his schemata useful and share his admiration of Charles Darwin's contributions to evolutionary theory.  Here is a lecture he gave on the origins and evolution of technology.

Saturday, June 6, 2020

Awesome Aussie Murids

I have a soft spot in my heart for Australasian murids.  I like them so much I did my Ph.D. on their genetics and evolution.  So, when I came across this article in Australian Geographic, entitled "Here are 7 clever Aussie native rodents", I had to share it.

Monday, June 1, 2020

Masters Of Artificial Intelligence

Harvard Business School professors Karim Lakhani and Marco Iansiti recently published a marvelous new book entitled Competing in the Age of AI - Strategy and Leadership When Algorithms and Networks Run the World.  This is the best account I have ever read of the seismic effects artificial intelligence will surely have, and, in some cases, has already had, on business, the economy, management, and public policy.  I thoroughly recommend it.

Sunday, May 31, 2020

Take Off, Bob And Doug!

Like millions of people around the world, I watched the successful launch of Dragon Endeavour on May 30, 2020. Today, May 31, 2020, I was thrilled to see Dragon Endeavour safely dock to International Space Station ("ISS"), and astronauts Bob (Behnken) and Doug (Hurley) - neither of whom called the other a "hoser" even once during their spaceflight - float into ISS to join colleagues Chris Cassidy, Anatoly Ivanishin, and Ivan Vagner. Wonderful!  It's a beauty way to go.

Saturday, May 30, 2020

Diamond In The Rough

Professor Jared Diamond (University of California Los Angeles) is a rare example of an academic whose expertise spans disparate fields of inquiry.  In his career, he has made important contributions in physiology, ecology, and geography.  Outside academia, Diamond has also been a influential writer of best-selling books intended for general audiences.  His most recent book was prescient, being published in 2019, just before the SARS-Cov-2 pandemic and worldwide economic collapse:  Upheaval - Turning Points for Nations in Crisis.  Also well worth reading is his commentary,  Jared Diamond: lessons from a pandemic - The coronavirus crisis should usher in an age of global co-operation, argues the Pulitzer Prize-winning geographer, published in the Financial Times on May 27, 2020.

Sunday, May 24, 2020

First Impressions Of The Last Dance

I just finished watching The Last Dance.  The biggest thing I learned is that, focused as I was on graduate school, I largely missed what happened in the 1990s NBA.  So, although the documentary revisits the Chicago Bulls' famous twin three-peats, I realized I was watching them for the first time.  Despite the involvement of Michael Jordan's company, Jump 23, in the production of the The Last Dance, the reality of the basketball footage alone convinced me that Jordan was every bit the superlative player of his legend.

Yes, I already knew he was good, but watching him bend the outcomes of games and series to his will, against a succession of superb teams and players, was a revelation.  Six NBA championships brought tremendous joy to Chicago Bulls players, staffs, and fans.  Yet, the documentary depicted enough conflict, hectoring, and cruelty to temper these accomplishments with a unavoidable sense of tristesse.

The Last Dance is excellent.  Nevertheless, it is valuable that the future is sure to add additional perspectives on a fabulous chapter in basketball history.

Friday, May 22, 2020


The United States Food and Drug Adminstration ("FDA") has listed almost 30 SARS-CoV-2 antibody-detection products as unapproved for sale.  This reflects the challenges of developing, and obtaining licensure for, such diagnostic tests.  The crowd of products ordered off the market also illustrates how great the market opportunity for such tests is perceived to be.

Thursday, May 21, 2020

Hope Takes Flight

Warranted or not, this week saw fragile hopes rise of a vaccine effective against SARS-CoV-2.  This reminded of Emily Dickinson's lovely enigmatic poem Hope:
Hope is the thing with feathers
That perches in the soul,
And sings the tune without the words,
And never stops at all,
And sweetest in the gale is heard;
And sore must be the storm
That could abash the little bird
That kept so many warm.
I’ve heard it in the chillest land,
And on the strangest sea;
​Yet, never, in extremity,
It asked a crumb of me.

Sunday, May 17, 2020

Friday, May 15, 2020

Tough Luck

The United States Supreme Court ("Supremes") unanimously decided LUCKY BRAND DUNGAREES, INC., ET AL. v. MARCEL FASHIONS GROUP, INC. on May 14, 2020.  Although the underlying dispute concerned a clash of  clothing trademarks including "Get Lucky" and "Lucky Brand", a central issue in the case concerned a legal theory called "defense preclusion".  Here the Supremes rejected defense preclusion.

Writing for the court, Justice Sotomayor provides this short summary of the posture of the case:
This case arises from protracted litigation between petitioners Lucky Brand Dungarees, Inc., and others (collectively Lucky Brand) and respondent Marcel Fashions Group, Inc. (Marcel). In the latest lawsuit between the two, Lucky Brand asserted a defense against Marcel that it had not pressed fully in a preceding suit between the parties.  This Court is asked to determine whether Lucky Brand’s failure to litigate the defense in the earlier suit barred Lucky Brand from invoking it in the later suit. Because the parties agree that, at a minimum, the preclusion of such a defense in this context requires that the two suits share the same claim to relief—and because we find that the two suits here did not— Lucky Brand was not barred from raising its defense in the later action. 
She concludes as follows:
At bottom, Marcel’s 2011 Action challenged different conduct—and raised different claims—from the 2005 Action.  Under those circumstances, Marcel cannot preclude Lucky Brand from raising new defenses. The judgment of the Second Circuit is therefore reversed, and the case is remanded for proceedings consistent with this opinion. 
Regardless of which company got lucky in this round, endless expensive litigation over a trademark covering a common English word seems anything but lucky for either firm.

Thursday, May 14, 2020

Rational Optimist On Covid-19

Here is a Spectator interview with the incomparable Dr. Matt Ridley on understanding and taming SARS-CoV-2 and Covid-19:

Tuesday, May 12, 2020

Dedication-Disclosure Slayback

On May 8, 2020, the United States Court of Appeals for the Federal Circuit ("CAFC") decided Eagle Pharmaceuticals v. Slayback Pharma.  Slayback - a moniker that clearly represents a missed naming opportunity in the field of heavy metal bands - evokes exactly what happened to Eagle Pharmaceuticals, whose four asserted patents the CAFC found not to have been infringed on the pleadings.  Representative claim 1 of its United States Patent No. 9,572,796 ("'796 patent") recites, among other elements, "a pharmaceutically acceptable fluid comprising a mixture of polyethylene glycol and propylene glycol".

Eagle Pharmaceuticals invoked the doctrine of equivalents "assert[ing] that the ethanol in Slayback [Pharma]’s product is insubstantially different from the propylene glycol ("PG") in the claimed composition."  In response, Slayback Pharma "argued that the disclosure-dedication doctrine barred Eagle [Pharma]’s claim of infringement under the doctrine of equivalents because the asserted patents disclose, but do not claim, ethanol as an alternative solvent to PG. The '796 patent also disclosed "ethanol"".

The CAFC affirmed the decision of the United States District Court for the District of Delaware, finding as follows:
Here, we conclude that the only reasonable inference that can be made from the patent disclosures is that a skilled artisan would understand the patents to disclose ethanol as an alternative to the claimed PG.  Nothing in the record permits us to infer that a skilled artisan “would have understood that the patent specification describes distinct categories of formulations that contain different ingredients and work in different ways.” Appellant Br. 44.  As a result, even when viewing the pleadings in the light most favorable to Eagle, we conclude there is no material issue of fact to resolve and Slayback is entitled to judgment in its favor as a matter of law.
Both the district and appeals courts decided Eagle Pharma's arguments flew in the face of the dedication-disclosure doctrine.

Thursday, May 7, 2020

Patent League Table

Here is an animation published by the World Intellectual Property Organization illustrating which countries filed the most PCT ("Patent Cooperation Treaty") applications from 2005 to 2019.  Notice the rise of Chinese and Korean PCTs.

Wednesday, May 6, 2020

Virology Now!

The Global Virome Project ("GVP") describes its mission as follows:
Develop an innovative network partnership among public, private, philanthropic and civil organizations to detect the majority of our planet’s unknown viral threats to human health and food security within 10-years to prepare for and stop future epidemics
The GVP elaborates its goals in this video:

Tuesday, May 5, 2020

Friday, May 1, 2020


In an exceptional May Day decision, the United States Food and Drug Administration ("FDA") issued an Emergency Use Authorization ("EUA") "for emergency use of remdesivir for the treatment of
hospitalized 2019 coronavirus disease (COVID-19) patients".  The EUA describes remdesivir as
a direct acting antiviral drug that inhibits viral RNA synthesis.  It is an investigational drug and is not currently approved for any indication.  Remdesivir has activity in cell culture and animal models against SARS-CoV, MERS-CoV, and SARS-CoV-2. 
It then outlines the scientific evidence undergirding its decision:
Based on review of the topline data from the randomized, double-blinded, placebo-controlled trial conducted by NIAID (NCT04280705) and from the Gilead-sponsored open-label trial that evaluated different durations of remdesivir (NCT04292899), it is reasonable to believe that the known and potential benefits of RDV outweigh the known and potential risks of the drug for the treatment of patients hospitalized with severe COVID-19.
Finally, the EUA explains the statutory basis for authorizing use of remdesivir: 
Having concluded that the criteria for issuance of this authorization under 564(c) of the Act are met, I am authorizing the emergency use of remdesivir for treatment of COVID-19, as described in the Scope of Authorization section of this letter (Section II) and subject to the terms of this authorization.  
There is no guarantee that further data regarding the performance of remdesivir will be similarly positive.  However, the EUA does indicate that the FDA has high hopes for this drug in combating SARS-CoV-2 and the Covid-19 disease it causes.

Wednesday, April 29, 2020

Balm Of Gilead

Today PBS Newshour ran the following detailed story about the latest results concerning a remdesivir clinical trial, with the most relevant portion of the video from 7:32 to 14:44. Although there is tremendous research and development needed to confront the SARS-CoV-2 pandemic, these clinical results are welcome.

Monday, April 27, 2020

The Night The Copyrights Went Out In Georgia

In a decision released April 27, 2020, the United States Supreme Court ("Supremes") decided against the State of Georgia, which had asserted its copyright in "statutory text and accompanying annotations".  Public.Resource.Org ("PRO") "is a nonprofit organization that aims to facilitate public access to governmental records and legal materials."  When it posted on the web a digital version of the "Official Code of Georgia Annotated" ("OCGA") without permission from a Georgia agency named the Code Revision Commission ("Commission"), the Commission sued PRO for allegedly infringing its copyright in the OCGA.

the annotations in Georgia’s Official Code are ineligible for copyright protection, though for reasons distinct from those relied on by the Court of Appeals.  A careful examination of our government edicts precedents reveals a straightforward rule based on the identity of the author. Under the government edicts doctrine, judges—and, we now confirm, legislators—may not be considered the “authors” of the works they produce in the course of their official duties as judges and legislators.  That rule applies regardless of whether a given material carries the force of law.  And it applies to the annotations here because they are authored by an arm of the legislature in the course of its official duties.
After Georgia v. Public.Resource.Org, Inc., anyone considering copying government works of authorship will certainly have Georgia on their mind.

Saturday, April 25, 2020

Inhabiting Technology

This weekend, I began reading W. Brian Arthur's book, The Nature of Technology:  What It Is and How It Evolves.  This has been on my reading list for ages.  Here is a quotation from page 10 that caught my attention:
Most of us do not stop to ponder technology.  It is something we find useful but that fades to the background of our world.  Yet - and this is another source of wonder for me - this thing that fades to the background of our world also creates that world.  It creates the realm our lives inhabit.
So far, I cannot put this book down.

Wednesday, April 22, 2020

Monday, April 20, 2020

No Failure To Thryv

The United States Supreme Court ("Supremes") published its opinion in the patent case Thryv v. Click-to-Call Technologies on April 20, 2020.  In her introduction to the opinion, Justice Ruth Bader Ginsburg provides a clear and succinct overview of the facts, the issues, and the Supremes' decision:
Inter partes review ["IPR"] is an administrative process in which a patent challenger may ask the U. S. Patent and Trademark Office (PTO) to reconsider the validity of earlier granted patent claims. This case concerns a statutorily prescribed limitation of the issues a party may raise on appeal from an inter partes review proceeding. 
When presented with a request for inter partes review, the agency must decide whether to institute review. 35 U. S. C. §314. Among other conditions set by statute, if the request comes more than a year after suit against the requesting party for patent infringement, “[a]n inter partes review may not be instituted.” §315(b). “The determination by the [PTO] Director whether to institute an inter partes review under this section shall be final and nonappealable.” §314(d). 
In this case, the agency instituted inter partes review in response to a petition from Thryv, Inc., resulting in the cancellation of several patent claims. Patent owner Click-to-Call Technologies, LP, appealed, contending that Thryv’s petition was untimely under §315(b). 
The question before us: Does §314(d)’s bar on judicial review of the agency’s decision to institute inter partes review preclude Click-to-Call’s appeal? Our answer is yes.  The agency’s application of §315(b)’s time limit, we hold, is closely related to its decision whether to institute inter partes review and is therefore rendered nonappealable by §314(d).  [Footnote omitted.] 
In light of this decision, it appears parties would be better served appealing to the Director of the PTO to institute IPRs than appealing institution decisions by the Director.

Sunday, April 19, 2020

Diagnostic DNA Dispute

Natera, a California biotechnology company involved in molecular oncology diagnostics, filed a patent infringement suit against ArcherDx on January 27, 2020, alleging infringement of claims of United States Patent No. 10,538,814 (the "'814 patent").  GenomeWeb reported on April 15, 2020, that Natera had amended its complaint to include alleged infringement of claims of U.S. Patent Nos. 10,557,172, 10,597,708, and 10,590,482.

The abstract of the '814 patent describes the inventive subject matter as follows:
The invention provides methods for simultaneously amplifying multiple nucleic acid regions of interest in one reaction volume as well as methods for selecting a library of primers for use in such amplification methods. The invention also provides library of primers with desirable characteristics, such as minimal formation of amplified primer dimers or other non-target amplicons.
Claim 1 of the '814 patent reads as follows:
A method for amplifying and sequencing DNA, comprising: 
ligating adaptors to cell-free DNA isolated from a biological sample, wherein the adaptors each comprises a universal priming site; 
performing a first PCR to simultaneously amplify at least 10 target loci using a universal primer and at least 10 target-specific primers in a single reaction volume; 
performing a second, nested PCR to simultaneously amplify the at least 10 target loci using the universal primer and at least 10 inner target-specific primers in a single reaction volume, wherein at least one of the primers comprises a sequencing tag; 
performing high-throughput sequencing to sequence the amplified DNA comprising the target loci.
It would not a bridge too far to predict that ArcherDx will robustly attempt to raise invalidity defenses against this and other patents claims, invoking both patentable subject matter (that is, 35 U.S.C. §101) and obviousness (that is, 35 U.S.C. §103).

Thursday, April 16, 2020

Diamond On Collapse

Today I want to highlight a book by an author whose pandemic prescience deserves acknowledgement:  Professor Jared Diamond.  His 2005 work of history, Collapse:  How Societies Choose to Fail or Succeed, holds particular relevance to the SARS-CoV-2 disaster even though its specific focus is on environmental catastrophe.

Wednesday, April 15, 2020

Chen On Disaster Law And Policy

The SARS-CoV-2 pandemic has raised into high relief myriad consequential legal and policy conundra.  Fortunately, the brilliant Professor James Ming Chen and his talented co-authors, Daniel A. Farber, Robert R.M. Verchick, and Lisa Grow Sun, wrote a textbook - now in its third edition - precisely on this topic, entitled Disaster Law and Policy.  It is mandatory reading for anyone interested in rights, responsibilities, resilience, and recovery from the global Covid-19 disaster.

Monday, April 13, 2020

The Qualitex Of Commerce Is Not Strained

Few would describe decisions by the United States Court of Appeals for the Federal Circuit ("CAFC") as colorful.  Nevertheless, the CAFC published an important opinion about color on April 9, 2020.  In In re:  Forney Industries, Inc. (CAFC 2020), the CAFC unanimously vacated and remanded a decision by the Trademark Trial and Appeal Board ("TTAB") that had held that
(1) a multi-color mark can never be inherently distinctive, and (2) product packaging marks that employ color cannot be inherently distinctive in the absence of a well-defined peripheral shape or border, we vacate and remand for further proceedings.
In its application for registration of a trademark proposed to cover "packaging for various welding and machining goods based on use in commerce under Section 1(a) of the Lanham Act, 15 U.S.C.
§ 1051(a)", Forney Industries described its packaging as follows:
[t]he mark consists of a solid black stripe at the top. Below the solid black stripe is the color yellow which fades into the color red. These colors are located on the packaging and or labels.
In contrast to the TTAB, the CAFC held that "color marks can be inherently distinctive when used on product packaging, depending upon the character of the color design".

With sincerest apologies to Portia, this case shows that the Qualitex of commerce is not strained.

Saturday, April 11, 2020

Disunitary Patent

The European Unitary Patent was intended to create a valuable patent right, available at a reasonable cost, and enforceable across a wide swathe of the European Union market.  The German Federal Constitutional Court dealt the Unitary Patent a severe blow on February 13, 2020.  An English-language press release summarizing this decision notes:
The Act of Approval to the Agreement on a Unified Patent Court (“the Act of Approval”) to confer sovereign powers on the Unified Patent Court is void. In its outcome, it amends the Constitution in substantive terms, though it has not been approved by the Bundestag with the required two-thirds majority.
The SARS-CoV-2 pandemic distracted me from realizing that this decision had already been delivered.  The United Kingdom's decision not to participate and the German Constitutional Court's rejection of Germany's accession have delivered a severe one-two punch to the Unitary Patent.

Friday, April 10, 2020


Professor Teneille Brown of the University of Utah S.J. Quinney College of Law published a thought-provoking article, entitled "Why We Fear Genetic Informants: Using Genetic Genealogy to Catch Serial Killers", in the Fall 2019 issue of The Columbia Science & Technology Law Review.  In the abstract of her article, Professor Brown suggests that,
Rather than banning the use of genetic genealogy to catch serial killers and rapists, I call for improved direct-to-consumer consent processes, and more transparent privacy and security measures. This will better protect genetic privacy in line with consumer expectations, while still permitting the use of LRFS [long-range familial searching] to deliver justice to victims and punish those who commit society's most heinous acts.
Her article is well worth reading.

Monday, April 6, 2020

SciAm On Covid-19

Scientific American has published a nice primer on the SARS-CoV-2 virus and the Covid-19 pandemic. Here it is:
This is a nice antidote to some of the misinformation floating around the world.

Friday, April 3, 2020

Ridley On Reason

The admirable Matt Ridley recently gave a wide-ranging interview on SARS-CoV-2 and his forthcoming book, How Innovation Works And Why It Flourishes In Freedom:
Enjoy the wonderful acoustics from his home closet.

Thursday, April 2, 2020

Curb Your Covidiasm

Here's Larry David's paean to staying home and social distancing:
As public service announcements go, it's prett-ay, prett-ay, prett-ay good.

Wednesday, April 1, 2020

Pandemic Unpatenting

Among other legislative responses to the SARS-CoV-2 pandemic the Canadian Parliament packed into its COVID-19 Emergency Response Act are several amendments to Canadian patent law:
R.S., c. P-4
Patent Act
51  The Patent Act is amended by adding the following after section 19.3:
Application by Minister
19.4  (1)  The Commissioner shall, on the application of the Minister of Health, authorize the Government of Canada and any person specified in the application to make, construct, use and sell a patented invention to the extent necessary to respond to the public health emergency described in the application.
Contents of application
(2)  The application must
(a)  set out the name of the patentee and the number, as recorded in the Patent Office, of the patent issued in respect of the patented invention;
(b)  include a confirmation that the Chief Public Health Officer, appointed under subsection 6(1) of the Public Health Agency of Canada Act, believes that there is a public health emergency that is a matter of national concern;
(c)  include a description of the public health emergency; and
(d)  specify a person, if any, that is to be authorized to make, construct, use and sell the patented invention for the purposes of responding to the public health emergency.
Cessation of effect
(3)  The authorization ceases to have effect the earlier of
(a)  the day on which the Minister of Health notifies the Commissioner that the authorization is no longer necessary to respond to the public health emergency set out in the application, and
(b)  one year after the day on which it is granted.
(4)  The Commissioner shall notify the patentee of any authorization that is granted under this section and provide them with the information referred to in subsection (2).
Payment of remuneration
(5)  The Government of Canada and any person authorized under subsection (1) shall pay the patentee any amount that the Commissioner considers to be adequate remuneration in the circumstances, taking into account the economic value of the authorization and the extent to which they make, construct, use and sell the patented invention.
Authorization not transferable
(6)  An authorization granted under this section is not transferable.
For greater certainty
(7)  For greater certainty, the use or sale, in relation to a public health emergency, of a patented invention that is made or constructed in accordance with an authorization granted under this section is not an infringement of the patent.
Power of Federal Court
(8)  On the application of the patentee, the Federal Court may make an order requiring the Government of Canada or any person authorized under subsection (1) to cease making, constructing, using or selling the patented invention in a manner that is inconsistent with the authorization granted under this section.
(9)  The Commissioner shall not make an authorization under subsection (1) after September 30, 2020.

How extensively, and with respect to which particular patented inventions, Canada will invoke this compulsory licensing provision by the end of the SARS-CoV-2 pandemic remains to be seen.

Sunday, March 29, 2020

Autoimmunity, Hydroxychloroquine, and SARS-C0V-2

Former Kansas Governor and physician Dr. Jeff Colyer discusses the use of hydroxycholoroquine in treating SARS-CoV-2 on March 29, 2020, in an article in the Wall Street Journal.  In fact, in his article, he reveals that "Kansas City area physicians, including Joe Brewer, Dan Hinthorn and [Dr. Colyer], continue to treat many patients, and some have shown improvement."  It is still early in the process of determining whether hydroxychloroquine, either alone or in combination with other drugs, might be an effective and safe treatment for SARS-CoV-2.  However, a large natural experiment involving the drug is currently under way among the many patients who have some autoimmune conditions:  hydroxychloroquine is already in wide use to treat malaria, as well as "to treat discoid lupus erythematosus (DLE) or systemic lupus erythematosus (SLE or lupus)...[and also] to treat acute and chronic rheumatoid arthritis."  It could be revealing for medical science to watch the rate and course of infection by SARS-CoV-2 in patients already taking hydroxychloroquine to treat other medical conditions.

Saturday, March 28, 2020

Six Seasons And A Movie

The sitcom, Community, had six seasons, albeit the final one was on Yahoo! Screen.  Now, only a movie remains to fulfill the prophesy of "Six Seasons and a Movie".  Netflix will begin offering the complete six seasons of Community on April 1, 2020.  Perhaps this portends a movie...

Friday, March 27, 2020

Severing Ties

On March 27, 2020, patent blog, PatentlyO, reported a petition filed with the United States Supreme Court involving U.S. patent application 2012/0253517, entitled NECKTIE PERSONAL-EXTENDER/ENVIRONMENT INTEGRATOR AND METHOD FOR SUPER-AUGMENTING A PERSONA TO MANIFEST A PAN-ENVIRONMENT SUPER-CYBORG FOR GLOBAL GOVERNANCE.  Here are the first five claims of this amazing patent application:
1. A system and method for augmenting Persona for humans comprising the arranging of a user and a machine (including Super-Computers, Network-is-the-Super-Computer, etc) in a Head (or any part of the body) and a Extender/Environment-Integrator relationship, whereby said relationship produces synergy and said user's Persona is augmented 
2. The system as claimed in claim 1, wherein said Personal-Extender/Environment-Integrator is a Necktie Imitation 
3. The Necktie Imitation claimed in claim 2 includes pocket data processing device connected to a global network with handwriting, speech, gesture and image synthesizing/processing software, a camera on the forehead, an ear-phone with microphone and/or a projector 
4. The method as claimed in claim 1, wherein the Personal-Extender/Environment-Integrator is implemented through black-box modernization technique whereby the general purpose data processor is reconfigured 
5. The method as described in claim 2, wherein the Body part consists of space (Laborspace) available in the world including in Cyberspace, in which case Cyberspace may be layered over the Persona/Meatspace to achieve the desired result of augmentation/extension
Although not addressed in the petition, the specification of this patent fails to point which particular knots to employ with the cravat in claim 3.  Does a full Windsor achieve global governance more effectively than a nicky knot?  Do bowties fall within the scope of equivalents?  Natty dressers need to know.  The patent application also makes the following observation in paragraph 0216:
23. The Network Blob is hard to manage because digital robberbarons are on the loose and perform covert operation, whereas Global Cyborgs even if they are many have manifestation as entities and can be dealt with:
It may be of comfort to some that, although the "Network Blob is hard to manage", at least "Global Cyborgs...can be dealt with".

Wednesday, March 25, 2020

Tuesday, March 24, 2020

Broad Testing

The Broad Institute of MIT and Harvard ("Broad Institute"), a leading biomedical research institute based in Kendall Square, Cambridge, Massachusetts, became an important SARS-CoV-2 reference lab as of March 24, 2020.  Here is how Boston National Public Radio station, WBUR, described Broad's rapid arrival on the testing scene:
The Broad Institute of Harvard and MIT began processing coronavirus tests Tuesday, and has the capacity to run more than 1,000 diagnostic tests daily. 
On Monday [March 23, 2020], the Broad ran 100 test samples from the [Massachusetts] state Department of Public Health through its robotic high-throughput system, and completed them successfully.
The Broad Institute's Genomic Platform is a natural candidate to help process SARS-CoV-2 tests rapidly and accurately, because, as its website explains,
Over the past ten years, The Genomics Platform has been the largest producer of human genomic information in the world. Currently, the group produces approximately 500 terabases of genomic data per month — a rate equivalent to one 30X human whole genome every 10 minutes. The group has processed more than 2 million samples from more than 1,400 groups in more than 50 countries.
As of March 24, 2020, according to Mapping Scientific Excellence, the Broad Institute has the highest "Best Paper Rate" of any scientific institute in the world.  In these challenging times, the best humanity can muster against the SARS-CoV-2 pandemic is its best science, so the Broad Institute is a powerful ally.