

Federal Circuit Invalidates Harvard and MIT's Patent For NF-kB Gene Expression - brlewis
http://www.litigationandtrial.com/2010/03/articles/the-law/for-lawyers/federal-circuit-invalidates-harvard-and-mits-patent-for-nfkb-gene-expression/

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carbocation
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.

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MaxwellKennerly
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.

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carbocation
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.

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

I can but hope.

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ww520
This is huge. When is software patent going to go?

