Archive for December 2012

Supreme Court to Revisit Question of Patentable Subject Matter

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Since the establishment of the Federal Circuit three decades ago, the Supreme Court has tended to distance itself from the development of patent law. As the Federal Circuit holds exclusive jurisdictions over appeals arising from disputes involving patents, circuit splits are unlikely to arise, and its judges are deeply familiar with the subject area. Thus it is not entirely surprising that as a general matter it is rare for the Supreme Court to review its judgments.

 However, in recent years the Supreme Court has reviewed several high profile Federal Circuit high-profile decisions, perhaps most notably in the area of the scope of patentable subject matter under 35 U.S.C. § 101. In Bilski v. Kappos, the Court agreed that an investment strategy was unpatentable subject matter, but indicated ambivalence towards the Federal Circuit’s chosen analysis. This year, in Mayo Collaborative Services v. Prometheus Laboratories, Inc, the Court held that claims over a medical diagnostic test were unpatentable “products of nature,” reversing the Federal Circuit.

On November 30, 2012, the Supreme Court granted review in Assoc. for Molecular Pathology v. Myriad Genetics, a case involving the patentability of human genes. The case has had a long journey through the federal courts. In 2011, the Federal Circuit found that claims over “isolated” DNA molecules are patentable subject matter, as well as certain associated method claims. This judgment was vacated and remanded to the Federal Circuit for further consideration in light of Mayo. On remand, the Federal Circuit once again held these patents to be directed towards patentable subject matter. Now before the Supreme Court again, it is likely that the Court will be directly addressing the question of whether human genes are patentable.

Petitioner argues that the patents at issue are invalid because they claim subject matter directed to a law or product of nature. They claim that these patents, which cover “isolated” forms of the BRCA1 and BRCA2 genes linked hereditary breast and ovarian cancer, have prohibited clinical testing, scientific research, and patients’ access to their genetic information. The respondent, Myriad Genetics, claims that the patents cover subject matter that was human-made and does not occur in nature. Myriad stresses the “enormous amount of human judgment” involved in their research and development of this area, and the importance of patent protection to support their industry.

This case is likely to be closely followed by many. Patentable subject matter is an area that the Supreme Court has shown a close interest in recently, lending much uncertainty to the state of the doctrine. Patent lawyers and scholars will wait to see whether the Supreme Court clarifies this area of law. The decision is likely to have a major impact on the biotechnology industry, who for many years has successfully obtained patents such as the ones at issue here with relatively little questioning of their validity. The public will be watching as well, as the question of whether human genes are patentable is a topic likely to generate excitement and intrigue from many.


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December 6th, 2012 at 8:34 pm

Driverless Cars – Who’s in Control?

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Henry Ford, the founder of Ford Motor Company, once said, “If I had asked people what they wanted, they would have said faster horses.” Ford’s out-of-the-box thinking is what led to the creation of the automobile, an invention that most people today could not imagine their lives without.

Google has applied the same forward-looking view in developing its latest innovation – autonomous vehicles. Autonomous vehicles could lead to significant decreases in the number of automobile accidents, and in turn could prevent many fatalities and injuries. Additionally, the driverless cars could decrease pollution and traffic by operating more efficiently than human drivers.

While the concept of a driverless car may seem difficult for the consumer to embrace, Google, as well as Audi, BMW, and other automobile manufacturers, have already developed and begun extensive testing on these autonomous cars. Sergey Brin, Google’s co-founder, estimates that these cars-of-the-future will be available to public consumers within the next five years.

On September 25, 2012, California Governor Jerry Brown signed legislation that will allow driverless cars to be operated on the state’s roads after the Department of Motor Vehicles enacts appropriate regulations for these autonomous vehicles. California is the third state to hop on the driverless cars bandwagon, following Nevada in June 2011 and Florida in April 2012. Hawaii and Oklahoma are currently considering similar legislation. The federal government has recently gotten involved, as well, by announcing that the National Highway Traffic Safety Administration will begin testing and regulating the autonomous vehicle technology.

While consumer acceptance of driverless vehicles may be a difficult hurdle to surpass, the legal issues associated with these autonomous cars are sure to be even more complex. Who, for example, should be held liable when an accident is caused by an autonomous vehicle?

This issue leads to even more confusion because a driverless vehicle is not always entirely driverless. There are three types of possible automation: monitored automation, conditionally automated, and fully automated. Under monitored automation, the vehicle uses adaptive-cruise control and lane-centering cameras but the driver is expected to continue monitoring the road. With conditionally automated vehicles, the vehicle can operate without any human assistance but the driver can choose to regain control. Fully automated vehicles remove all control from human drivers and operate totally independently of humans.

Depending on the extent of automation, various legal issues will arise. With monitored automation, it could be difficult to tell who is at fault – the car or the driver – for failure to prevent an accident. Ultimately, it would seem as though the judgment calls lie in the hands of the driver. With conditionally automated driving, the liability likely rests on the vehicle manufacturer; however, since the driver is able to regain vehicle control, he or she may be in the best position to prevent an accident from occurring. Finally, while there is likely little to no confusion about who is in control when the vehicle is fully automated, a number of other complicated issues arise. Many of these issues are associated with ethical dilemmas and judgment calls that society may not feel comfortable having made by vehicles instead of humans. When, for instance, an accident is totally inevitable, and the only choice is whether to hit an elderly woman crossing the street or a minivan transporting a mother and her three young children, do we really want to let the car decide? If the answer is yes, from where (or whom) does the car get its sense of morals?

While driverless cars may be within reach in the near future, one thing is certain: federal and state governments will have their work cut out for them in attempting to resolve the myriad legal and moral issues that will arise as a result of this new technology.