Patents

Patents: Plague or Panacea for the Health IT Industry

By: Lindsey Chessum *

Insurance CardBeen to see the doctor recently? Got a check-up? Maybe an MRI or X-Ray? Did you use your primary doctor, a specialist, or emergency care? Did the attending doctor know about your allergies or your medical history? How about the wait? How long did you wait for charts to come in or for records to be transferred from your primary doctor to your specialist or from your specialist to the emergency room?

Online medical records are becoming more common to address issues of inefficiency and disharmony, both of which lead to mistakes by doctors or lack of care to patients. The force behind the switch from paper to electronic files can be traced to two sources: government legislation and business income statements. Continue reading »

The BRCA Gene Patent Fight Rears Its Ugly Head Again

By: Allison McCowan *

Breast cancer ribbonOn September 25, 2012, the American Civil Liberties Union (the “ACLU”) along with the Public Patent Foundation requested the U.S. Supreme Court to reconsider the patents for BRCA1 and BRCA2, genes which are associated with hereditary breast and ovarian cancer. The ACLU’s lawsuit names Myriad Genetics, Inc. (“Myriad”) and the University of Utah Research Foundation as defendants and requests the Supreme Court invalidate the two gene patents on grounds that they are illegal and restrict scientific research and patients’ access to medical care. Previously, the U.S. Supreme Court has unanimously held that companies are not permitted to patent observations of natural phenomena.

In 1998 Myriad Genetics, Inc. patented the genes BRCA1 and BRCA2. These two genes are used by Myriad to detect the risk of breast and ovarian cancers and to help inform patients of their treatment options. Patients who test positive for the “breast cancer gene” using Myriad’s gene test have an 82 percent higher risk of developing breast cancer and a 44 percent higher risk of ovarian cancer in their lifetimes. By patenting these two genes, Myriad has the exclusive rights to perform tests on the two genes. Critics, including the ACLU, argue that this level of exclusivity allows Myriad to set the costs for the tests and makes it completely impossible for women to get a second opinion about their results. Additionally, the ACLU contends that the exclusivity prevents other researchers from additional testing or even looking at the genes without prior permission from Myriad. Continue reading »

Patent Armageddon

By Jason Weber *

Nuclear bomb explosionThe Cold War may have ended decades ago, but the arms race has just begun.  However, this is not a race between the United States and Russia to amass the largest stockpile of nuclear weapons.  It is a race between major tech companies to amass the largest stockpile of patents in the world.  In the past year, major tech companies including Apple, Yahoo, Samsung, and Facebook have been involved in patent infringement actions.  During this same time period, these companies and others have been buying up patents like candy.

On April 9, 2012, Microsoft bought over 800 patents from AOL for almost $1.1 billion.  Back in August, Google bought Motorola Mobility and its slew of over 17,000 patents for $12.5 billion.  Before that, a group of companies, including Apple and Microsoft, beat out Google’s competing bid and bought 6,000 patents from the bankrupt Nortel Networks for $4.5 billion.  Facebook recently joined in the race when it bought about 700 patents from IBM. Continue reading »

Apple v. Samsung: One Step Closer

By Pierce Haar *

Apple logoLast April, Apple sued Samsung for patent infringement concerning the company’s iPad and iPhone products.  Apple claimed that Samsung copied the “look and feel” of its products when it created the Galaxy line of Samsung electronics.  Last December, Judge Lucy Koh denied Apple’s request for a preliminary injunction on some of Samsung’s Galaxy models.  Judge Koh did note, however, that Apple would likely prevail on at least one of the counts of patent infringement related to the patents.  Fast forward to April 4, 2012.  On this date, Judge Koh ruled on term definitions during claim construction for the lawsuit.  Eight terms were up for consideration and Judge Koh ruled in favor of Apple on five of those eight terms.  Judge Koh decided to use two of the terms as they were presented by Samsung and use a hybrid definition for the remaining term.  Claim construction can often be a vital part of the patent litigation process, as the terms help define and frame how a judge may rule on the claims at hand.  Favorable definitions do not guarantee a victory for Apple.  However, they do make it that much easier for Apple to prevail on its claims.  When taken in context of Judge Koh’s previous statements about the validity of some of Apple’s claims, it would seem that Apple’s claim construction “victory” would signal that the odds may indeed be in Apple’s favor.  Only time will tell whether or not Apple is going to be victorious.  We may never find out, however, as there are rumors of the potential for a settlement. Continue reading »

Mercedes-Benz Paid How Much in Legal Fees?

By Sarah R. Riedl *

Mercedes-Benz LogoMercedes-Benz has broken new advertising ground by hyping patent ownership in its E-Series television commercial.  In lieu of more traditional automobile advertisements involving high-speed maneuvering around fallen debris or demonstrations of innovative features, Mercedes-Benz has chosen to highlight the paper trail resulting from its patent collection.

The first thought that came to my mind after seeing the advertisement was “80,000 patents, that is a mountain of legal fees.”  The message, however, seems to be creating a new standard for the future of automobiles: “A legacy of innovation for all cars to follow.”  Most of the patented technologies involve high-end features including headlights adjusting for oncoming motorists and sensors to detect objects in the roadway or cars drifting into the oncoming lane. Continue reading »

Article One Partners: Bounty Hunters Search for Prior Art Instead of Fugitives

By Jason Weber *

Prior art editorial cartoonThere are ridiculous patents, and there are bogus patents.  Those of the ridiculous variety, such as “plumber chic pants,” the “life expectancy watch,” and the “gerbil shirt,” provide a good laugh.  Bogus or questionable patents that are overbroad, vague, or unoriginal, however, can harm the public and have a chilling effect on innovation.  An example of a bogus and overbroad patent includes a 1994 patent for the entire “interactive web.”  There are many posited reasons that the United States Patent and Trademark Office (USPTO) sometimes approves questionable patents, but the most often repeated reason is the vast number of patent applications filed every year and relatively small number of patent examiners employed by the USPTO to examine those patents and determine their authenticity.

Among other requirements, in order to receive a patent under 35 U.S.C. 101, the patented invention must be “new.”  To determine if an invention is actually “new,” patent examiners search for “prior art,” which is essentially any reference of any type that proves the proposed invention is not new.  This prior art can be found in another patent, a publication, or a previous similar invention that was sold, marketed, or used.  Finding prior art, however, can be extremely difficult.  Patents are dense and technical, and in order to determine if the invention is not “new,” examiners have to understand what the patent covers.  Further, prior art can come from anywhere in the world.  Because of these two issues, searching for prior art is time-consuming and expensive, and many examples of prior art can be missed by the overworked and understaffed USPTO patent examiners. Continue reading »

Blockbuster Drugs, Including Lipitor, Reaching the End of their Patents

By Lena Mualla *

Boxes of Lipitor medicationLipitor, the best selling prescription drug in the U.S. and in the world, will be available in a generic form at the end of this month, when Pfizer’s patent expires.  Lipitor is used to lower users’ cholesterol levels.  Ranbaxy, a generics manufacturer based in India, struck a deal with Pfizer, the current patent holder.  As a result of that deal, Ranbaxy will have exclusive rights to the generic form of Lipitor, atorvastatin, for six months.  Since generics are legally required to contain the same active ingredients as the name brand, the generic is essentially equivalent to the name brand, yet much cheaper.

Under the Hatch-Waxman Act, which provides a whole array of incentives so that generics manufacturers can mount litigation against patent holders without the normal financial risk, the exclusivity provision is just one of many meant to entice generics manufacturers into competing with current patent holders.  Basically, due to the Act, Ranbaxy will be in an excellent position to reap the rewards of a market shift at Pfizer’s expense.  An added bonus may also hit CVS and Walgreens, who are both expected to increase the price of their shares by about 10%.  Representatives from both stores have remained cautious in their outlook, taking care to note other factors that may come into play. Continue reading »

Does the Stop Internet Piracy Act (SOPA) Really Signal “The End of the Internet as we know it”?

By Jason Weber *

FBI Anti-piracy WarningIn the past year, the Internet has been used to do some amazing things.  Pro-democracy advocates used social networking to further populist uprisings during the Arab Spring.  Iron-fisted governments manipulated the same tools to silence dissent and isolate citizens seeking freedom.  While the United States has consistently portrayed itself as a voice for a free and open Internet, SOPA, a bill circling in the House of Representatives, is sending a different message to tech giants and human rights activists around the world.

SOPA stands for the Stop Online Piracy Act.  Along with its sister bill in the Senate, the Protect IP Act, SOPA has laudable goals: to protect intellectual property rights and stop online piracy.  To accomplish these goals, Section 102 of the bill gives the U.S. Department of Justice broad power to force U.S.-based online search engines, payment providers, and advertising networks to stop doing business with, and block access to, any foreign website guilty of infringing on a U.S. copyrights or patents.  Any U.S.-based internet company that fails to use “technically feasible and reasonable measures” to remove infringing content within five days of receiving a court order can be subject to monetary sanctions. Continue reading »

All Your Patents Belong to Us: Microsoft and Google Fight over Android Patents

By Pierce Haar *

Android LogoDespite all the rage for the latest and greatest from that little tech company in Cupertino, California, Google’s Android operating system continues to hold a 40% market share in the U.S. and somebody besides Google is looking to cash in on that business.  Microsoft, claiming that the Android operating system infringes upon its patents, stands to gain hundreds of millions, if not billions, of dollars from licensing deals and settlements with Android device manufacturers such as HTC and Samsung if successful in its litigation.  Microsoft could receive as much as $15 per Android phone produced by Samsung.  Between April and September of 2011, the Galaxy S-II, a Samsung Android phone, moved 10 million units.  That is potentially $150 million for just one phone line.  In addition to the onslaught that Google is facing from Microsoft, the company is also facing complaints from Oracle that Android devices infringe upon its patents covering the Java software system.  How did Google, and its software progeny, get into this sticky intellectual property situation? Continue reading »

Apple and Samsung’s Domestic Battle Goes Global

By Chris Hewitt *

Apple LogoA patent can be the life blood of a company because it gives the company the sole right to use or market the process, product, or machine that is covered by the patent for a few years. This essentially gives the company a temporary monopoly over the patented subject matter.  Patents are particularly of great value for technology companies like Apple and Samsung.  The technology industry is extremely competitive and securing a patent on the design of a product can give a company an advantage over its competitors.  Once a patent is received, companies go to great lengths to protect their patents and will often initiate litigation when necessary, as evidenced by the extensive patent litigation between Apple and Samsung that began in April.

In April, Apple sued Samsung in the United States, alleging that Samsung’s line of Galaxy tablets were a mere copy of the iPhone and iPad.  Litigation between the companies has since spread to other countries throughout the world (including Italy, France, Germany, the Netherlands, and Australia among others) as each company has attempted to have the other’s alleged infringing product banned from that market.  Apple has had much success in its litigation, having its claims upheld in the United States, Germany, and the Netherlands, as well as receiving a temporary ban of the Samsung Galaxy Tab 10.1 in Australia. Continue reading »