Class Seven/notes
From Cyberlaw
Notes 3.20.06 (edit away!)
(add PPT pls!)
Scott Brown – Millenium
- • Look at the “hat” that ppl are wearing to determine where they’re coming from
- • Patents/IP have been increasingly heard by USSC, partly bc of press coverage, partly bc we are becoming a v tech society
Patent Primer
- • Rights in patent: negative right to exclude others from your IP
- o Crossblocking situation: improvement patentee has to accommodate original patent to enter market
- • Inventor/owner
- o Inventor: who thought of and made the invention (inventive act – thinking! – not ppl following instructions)
- - But sometimes you discover things during experimentation (e.g. Viagra)
- o Ownership: who owns rights, determined by agreements (if no agreement, then inventor)
- o Inventor: who thought of and made the invention (inventive act – thinking! – not ppl following instructions)
- • Rights of ownership
- o Hold title, right to sue, right to license, no obligation to do anything
- o Co-owners can do stuff independently
- • Types of transfer/licenses:
- o Assignment: full rights, v rare
- o Exclusive license: owner keeps just title, usu can’t even use the invention, usu for commercial interests
- o Co-excl license: owner + licensee
- o Non-excl license: multiple licenses, used when blocking probs
- o Non-asset covenant
- • Actual patent: claims define what negative right is in patent
- o Patent is a negotiation w/ the PTO
Why do we have the patent system?
- • It is a monopoly – quid pro quo: monopoly for disclosure
- o Ppl are motivated by $$ -- want to keep things secret
- o Disclosure leads to improvements
- • But is the exchange in balance?
- o Lasts 20 yrs from date of filing
- o Tech turns over so quickly
- o All tech gets same protection
- o When Brown puts on his meta-physical patent hat, he thinks 20 yrs across the board is too long – unclear what the right length of time is
- • Often patents are filed and then the invention isn’t carried through bc time on market wouldn’t give big enough pay off to finish testing
- o Should companies put these patents into public domain?
- - Sometimes they do, sometimes by abandoning patents
- - Once you enter clinic, publishing is necessary post-Vioxx
- o Drugs are hugely expensive to develop (at least $100-200M)
- o Should companies put these patents into public domain?
- • Diff from copyright – scope is broader, term is shorter
Crichton Article
- • Metabolite v. LabCorp:
- o Patent covers correlation between elevated homocysteine w/ vitamin deficiency
- o Claims that are important are 1 and 13:
- - Claim 1: method/kit for assaying – no one’s griping ab it
- - Claim 13: assaying + correlation (i.e. thinking) – all that’s new is the thinking ab it, the testing technique is old
- o If the claim stands up, dr who thinks ab it will infringe – seems wrong, dr is supposed to treat a patient!
- o Infringing should be a doing thing, not a thinking thing
- o Part of problem is that the claim is so bad
- - Brown would exempt doctors – but it’s not even like drs are getting sued in real world, which is why Brown calls Crichton “Chicken Little”
- • Brown doesn’t think benevolent society will come up w/ something useful w/o profit motive – is this true?
- o Investment isn’t in discovering IP, not that simple bc lots of patents usually involved
- o Motivations being questioned…what’s the greater good…who should make these calls
- • Gene patenting:
- o Genes aren’t patented, an isolated form of them is
- o Question is what should we be allowed to do w/ the isolated form?
- - Functioning of invention is so close to naturally occurring thing in cases like genes, antibodies, etc.
- - Must know connection between invention and real world relevance now – diff between law of nature itself and the discovery that the law of nature can be put to a useful purpose
- o Chakrabarty: altered the organism – can’t patent a living thing w/o changing it but can patent process
- o No good way to defend why monopoly exists. Sys devel bc PTO has protected biotech industry – that’s why you can patent the gene w/o knowing every use and have all those uses covered
- - Market made gene patenting a good investment – but not necessarily true that biotech would have died…
- - Is genome a special case bc it was so obv important? Private funding is unavoidable, possible alternative sys?
- o Small molecule world is totally diff from gene patenting world (compound patent sep from use patent, so can design around, but hard to do that w/ biologically existing things)
Belee 23:26, 20 March 2006 (EST)
