On the Edges of Science and Law

In Re Kubin: Federal Circuit's Decision Sounds the Death Knell for Gene Patents

GUEST BLOGGER Joshua D. Sarnoff

The U.S. Court of Appeals for the Federal Circuit ("Federal Circuit") has decided an important case regarding the application of the obviousness requirement to gene patents.  In re Kubin, No.2008-1184 (Fed. Cir. Apr. 3, 2009).  That case upheld the rejection by the U.S. Patent and Trademark Office (USPTO) of typical claims to gene sequences as unpatentable because they were obvious.

Patent Law Reforms Could Lead to More Money for the Patent Office, Better Patents

By Jake Meyer

Previously, I discussed a proposed reform to the patent system: changing from a first-to-invent regime to a first-to-file regime.  This is just one of many proposed reforms being considered by Congress, as a part of two different bills.  An article published this week in Nature highlights how current proposed reforms to the U.S. patent system may appropriately address criticisms of U.S. patent quality.  The U.S. Patent and Trademark Office (USPTO) is understaffed and underfunded, which contributes to decreased patent quality.  Proposed changes to the U.S. patent system should help the USPTO to accumulate more resources, which should lead to higher patent quality.

An increasing number of patent applications are filed with the USPTO every year (from 355,000 in 2003 to about 495,000 in 2008).  The USPTO has a high turnover rate, where for every two examiners hired, one examiner leaves.  An examiner at the USPTO has about 20 hours to examine a patent application, which includes reading the patent application, searching through databases to determine if the subject of the application is novel and non-obvious, and to write a twenty page report on whether the subject of the application is patentable.  Despite the limited time spent on each patent application, an understaffed USPTO cannot examine the increasing number of patent applications filed which has lead to a growing backlog of unexamined patent applications (770,000 patents in 2008).  Currently it takes about 2 years to before a patent application is examined. 

Twins Foil DNA Forensic Test

By Tim Welch

On January 25, 2009, masked intruders stole about €5 million worth of jewelry and watches from an upscale department store in Berlin, Germany.   Surveillance cameras caught the crime on tape, and police found a glove containing identifiable DNA at the scene.   After the DNA was analyzed, the police were surprised to find that the DNA was linked to two men with criminal records, a pair of German twins identified as Hassan and Abbas O.   The twins were arrested on February 11, 2009.

Despite the DNA evidence, German police were forced to release Hassan and Abbas O. on March 18, 2009 because their DNA codes are virtually indistinguishable from each other using analysis methods accepted in German courts.   According to a Times Online report, "German law stipulates that each suspect must be individually proven guilty of a crime."   Since the DNA could not point to a specific suspect, German authorities were forced set the twins free.

Senate Considering a Big Change to the U.S. Patent System

By Jake Meyer

The U.S. Patent System has always been a first-to-invent system, which means that the first inventor of an invention will be awarded the patent.  Most other countries in the world are a first-to-file system, which means that the first inventor to file a patent application will be awarded the patent.  This has always been one of the large differences between the U.S. patent system and patent systems in other countries, but an amended bill before the U.S. Senate may eliminate this difference. If it is signed into law, S.515 will change the U.S. patent system from first-to-invent, to first-to-file.

In a first-to-invent patent system, the current U.S. system, disputes sometimes arise over who invented the subject of the patent first.  To resolve the dispute, the parties must first go to the U.S. Patent and Trademark Office’s Board of Patent Appeals and Interferences.  If a party objects to the Board’s decision, the party can appeal the decision to the United States Court of Appeals for the Federal Circuit.  This is a lengthy and expensive process.

Teaching Law Through Fiction

By Lori Andrews

Last weekend, the Association for the Study of Law, Culture, and the Humanities met in Boston.  Along with panels on constitutional theory, human rights, criminal law, and same sex marriage, there were panels on novels and movies--Billy Budd, Twelve Angry Men, Notes from the Underground, even Harry Potter.

Since I was speaking at the session on "Law and Contemporary Fiction," I prepared by reading the novels written by my co-panelists Alafair Burke (Hofstra University School of Law), Kermit Roosevelt (University of Pennsylvania Law School), and Marianne Wesson (University of Colorado Law School).  They were all law professors by day, mystery writers by night.  But unlike CSI or the usual thriller, their books tried to stay true both to the law and the emotions of being a lawyer.   It struck me that their novels could be used to teach subjects as wide-ranging as First Amendment Law, Criminal Procedure, Corporate Law, and Professional Responsibility.  But their books involved more than just a clever use of a legal construct.  They'd captured the ethical challenges that lawyers face, the insane hours, and the feeling in the pit of one's stomach when a life, a business, or a principle of value is on the line. 

In These Tough Times, Young Children Provide Health Care for Parents and Grandparents

By Tim Welch

As the incidence of chronic conditions such as diabetes increases across the nation (in 2007, there were 1.6 million new cases of diabetes diagnosed in people aged 20 years or older), more Americans are requiring long-term medical care.  Couple that with an economic recession that has millions of workers unemployed, without income or insurance, and unable to pay expensive hospital bills, and you have a serious health care crisis.  A recent article published in The New York Times described how the pressures of this crisis are frequently falling on the shoulders of American children.  As parents and grandparents are increasingly unable to foot the bill for medical care, children aged 8-18 are assuming the caregiver role.

According to the article, children across the country are being asked to perform various tasks often becoming of professional nurses, including, but not limited to, "lifting frail bodies off beds or toilets, managing medication [including injections], washing, feeding, dressing, and talking with doctors." 

Sen. Grassley Investigates Payment to Harvard Researchers by Drug Companies

By Julie Burger

When allegations were made public that academic researchers who conduct clinical trials were failing to report funding they received from industry (including the drug companies which produced the drug being tested), I suggested some ways medical centers or the government could assure the disclosure of these relationships.  U.S. Sen. Charles Grassley (R, IA) has launched an investigation into whether researchers are failing to disclose payments from pharmaceutical companies.  He found evidence that prominent physicians at prestigious universities failed to disclose payments from drug companies--some payments were even received while the doctor was conducting trials on a drug made by the company paying the physician.  Now the U.S. Attorney for the District of Massachusetts and the Inspector General of the Department of Health and Human Services have issued a subpoena to a law firm that represents States in their claims of Medicaid fraud against manufacturers of antipsychotic drugs.  The subpoena asks for information about researchers and their connections with the drug companies.