Federal Circuit Invalidates Harvard and MIT's Patent For NF-kB Gene Expression

http://www.litigationandtrial.com/2010/03/articles/the-law/for-lawyers/federal-circuit-invalidates-harvard-and-mits-patent-for-nfkb-gene-expression/

by brlewis • 16 years ago

22 5 16 years ago

litigationandtrial.com

btilly• 16 years ago

Will this lessen some of the insanity about patenting every gene they find?

I can but hope.

carbocation2• 16 years ago

At first blush, it would be tough to overstate the importance of this ruling. I need to sit down with the actual decision to be sure, but this seems as though it could have wide impact on those who discover a gene and then feel entitled to profit from it. At the same time, it seems a gameable ruling. For example, if the Whitehead folks had performed a knockdown assay, and thus demonstrated a method of modulating that specific protein, would that have been sufficient for this court? If so, or if something similar would be allowed, then this ruling will have only a modest impact going forward. Anyways, IANAL (but I have discovered genes); I need to read the full decision before I ramble on anymore.

MaxwellKennerly• 16 years ago

I'm a lawyer (and the author of the post), though I've never discovered any genes.

IMHO, although the court would likely have found a use of a knockdown assay to have been a sufficiently descriptive method of modulating the protein, that does not end the analysis. First, patent protection in such a situation would likely have been limited solely to the use of a knockdown assay to modulate the protein. Second -- no offense intended, of course -- but apparently the use of a knockdown assay is so obvious that it took some fellow on the Internet who read a blog post only a few minutes to think to do that. Such "obviousness" would likely cause even the limited patent to be invalidated.

Of course, there's still considerable room in the law, particularly patent law, to "game" things, but this ruling is at least a step in the right direction.

carbocation2• 16 years ago

Thank you for your thoughtful reply. No offense taken at all. I have perhaps 4-5 times seen an assay or drug delivery method that could really be considered novel (though I clearly lack a legal understanding of 'novel' which I readily concede).

Your reply makes me hopeful that this decision will have a greater impact than I had hoped.

ww520• 16 years ago

This is huge. When is software patent going to go?

Federal Circuit Invalidates Harvard and MIT's Patent For NF-kB Gene Expression

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