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Why Aren’t Genetic Sequences Protected Like Radio Frequency Bandwaves?

CNN Money – Fortune: While doing his best to harvest traffic via Google by mentioning a superstar pop figure, David Ewing Duncan also manages to address an item of greater importance: patenting human genetic sequences. In his catchily titled piece, What DNA, Patents and Lady Gaga have in common, Ewing Duncan writes on why genetics should be treated more like radio frequencies than better mousetraps:

When radio was invented in the late nineteenth century by the likes of Marconi, Edison, and Tesla, government and industry faced a conundrum. Who would own the limited band of electromagnetic frequencies that made this new invention possible?

By the 1920s the decision was made that the public would own the airwaves, with the government leasing frequencies to companies that were required to follow certain rules.

But the model for human genetic information has taken a different turn, and one that groups like the American Civil Liberties Union aren’t too happy about. Ewing Duncan explains:

Instead of a public ownership model granting licenses, the U.S. Patent Office has spent the last twenty years awarding patents to companies, universities and others who discover genes — with over 20% of human genes already claimed.

And why is this a bad thing, you ask? Read on.

According to the ACLU and a long list of plaintiffs that includes research and patient advocacy groups, the U.S. Patent Office (also listed as a defendant) was wrong to issue these patents — and by extension all genetic patents.

“Genes are naturally occurring entities, like air or gravity,” says ACLU attorney Chris Hansen, “and therefore under the law they are ineligible for patenting.”

Of course, companies using their patents on human genetic sequences claim they would fail without the protections afforded them by a patent monopoly. Much like radio stations were never developed without patents on the frequency bands for broadcasting their material/advertisement. Oh, wait. They *were* developed and profitable.

The TTABLog: Any fan of automobiles will surely be aware of Carol Shelby’s iconic AC Cobra supercar and his proclivity to sue the living daylights out of anyone who dares create imitation kit cars. But how does this play into modern day intellectual property news, you ask? John L. Welch has the answer:

The TTAB will visit Boston on the afternoon of April 9th to hear final argument in Factory Five Racing, Inc. v. Carroll Shelby and Carroll Hall Shelby Trust, Opposition No. 91150346, as part of a program co-sponsored by the Boston Patent Law Association and Boston University Law School. The hearing will be held in the Stone Moot Court Room at the law school, at 765 Commonwealth Avenue, Boston, MA 02215.

Factory Five Racing sells a Cobra look-alike kit car based on the popular Ford Mustang 5.0 liter platform and Mr. Shelby is looking to block their products. This isn’t stopping the folks at Factory Five, though, as they claim Shelby’s Cobra has fallen prey to “genericness, abandonment, fraud, failure to function as a mark, and collateral estoppel.” Be sure to read Welch’s “TTAB Comes To Boston” – April 9th at Boston University School of Law for more information on what is sure to be an exciting case.

Photo Attorney: Photography attorney Carolyn E. Wright takes some of the mystery out of “free use” in her topical piece entitled The Fuss About Fair Use. She writes:

Surprisingly, the purpose of copyright law is not to protect the work of creatives, but, as stated in Article I, section 8, clause 8, of the United States Constitution, it is “to promote the Progress of Science and useful Arts, by securing for limited times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Copyright law attempts to achieve a balance between public interest and the rights of authors/artists so that artists will be encouraged to create and the public will be the ultimate beneficiary. In many ways, the priority leans towards public concerns when there is any conflict in those interests. As a result, the law may not seem fair or just to the copyright owner.

Wright then delves into the more technical, legal aspects of copyright law as it applies to fair use before releasing the take-away for the gentle reader:

It is always a judgment call until a court gives a final ruling whether the use of a photograph is fair. But if you find your work has been used without your permission and the defense is “fair use,” don’t be too quick to accept that answer.

I hope Ms. Wright will consider my quotes from her excellent piece to be “fair use” but in any case, please click through to the original article to read her complete text.

Washington D.C. Intellectual Property Attorney Blog: Innovators-Network contributor Raymond Millien recently posted a blog entry detailing the difficulties a business can encounter when brokering a deal for intellectual property without making sure all the details are carefully attended to during negotiations. He writes:

Entering into a corporate transaction without a careful review of the intellectual property (IP) involved can have negative consequences on your enterprise’s future IP strategy.  This is especially true when IP owners do not adequately supervise their corporate attorneys who may not appreciate or be aware of the unintended consequences of the language typically employed in merger, acquisition, joint venture, financing and other corporate transactional agreements.

Millien then goes on to  provide further information of how things went awry in one particular deal before leaving the gentle reader with this pertinent thought: “Care must be taken to make sure that the IP that is transferred (or licensed, exempted, etc.) is clearly identified and no unintended consequences result with respect to the involved parties’ future IP strategy.” Indeed! Read the rest of Are Your Corporate Attorneys Harming Your Future IP Strategy? and learn what *not* to do when transferring corporate IP.

IP Asset Maximizer Blog: And finally, a look at how checklists can help those in the business of patents be all they can be and avoid potentially expensive mistakes in Jackie Hutter’s Checklists Could be the Key for Managers to Understand Whether Their Company’s Patents are Worth the Paper They’re Written On. She writes from personal experience on how checklists have played both hero and villain in her career:

…I lost my in-house counsel position in December 2007.  While there were many reasons why I was let go, the growing economic crisis and my high salary being  major factors, I have to acknowledge that the head of the patent department and I clashed repeatedly about about my view that we needed to establish processes and procedures to ensure that the patent work product our group pushed out was not flawed.  One way I suggested to do this was to have checklists, which I had used at the prestigious IP law firm where I had been trained.  To me, it seemed so obvious that we should follow established procedures, but my boss disagreed vehemently and even seemed offended that I would suggest that he and his team could not do their jobs without checklists.

…the department head rejected my suggestion, saying “it is the attorneys’ responsibility to make sure they are doing their jobs right.”   This was magical thinking:  without proper training and/or proper procedural safeguards, no attorney can do his or her job correctly.   Speaking for myself, I certainly possessed a high level of training after working for many years at a prestigious law firm, and yet I knew with virtual certainty that mistakes were being made by me and my support staff on a regular basis.  Put simply, there is far too much minutiae in patent practice for anyone to keep up with in the absence of a checklist.  And, since my lawyer colleagues possessed much less training than I did, one can come to their own conclusions about whether mistakes were made throughout the department.

Whoops! Hutter might have been right about checklists and how they can ensure quality patent processes, but she also admits that her surety regarding their application caused much concern in her unsure boss who reacted by blustering and pooh-poohing her vehement exhortations. Tread carefully, gentle reader, but better to be able to wake up in the morning and be able to look oneself in the mirror squarely, nu?

Bonus IP piece o’ the day: Students and photocopiers require reforms in intellectual property law at The Costa Rica News

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