By Andrew Longstreth
NEW YORK | Sun Jan 6, 2013 12:29pm EST
(Reuters) - While the focus of last week's agreement between the Federal Trade Commission and Google Inc was search, the deal's restrictions on how Google uses its patents could have a broader impact on the technology industry.
Under the deal, which ended an antitrust investigation by the FTC and disappointed many critics, Google will make only minor changes to its search business.
But Google is also now limited in when it can seek injunctions against products from rival companies that use certain of its patents.
Throughout recent smartphone wars and other major patent litigation, holders of so-called standard essential patents have been accused of using them to bully competitors into paying high licensing rates or as leverage in patent disputes.
The FTC's deal with Google clarifies the uncertainty over how standard essential patents can be used, said Colleen Chien, a professor specializing in patent law at Santa Clara University School of Law in California.
The deal set out a process by which technology makers can avoid injunctions and patent holders know they are going to get compensated, Chien said. "The FTC has deflated the power of the injunction and also the incentives to not pay that have existed."
In its case against Google, the FTC claimed that Google and its subsidiary Motorola Mobility Inc had breached commitments to standard-setting bodies to license its patents on terms that are fair, reasonable and non-discriminatory. As part of the deal, Google agreed to drop claims for injunctive relief against competitors in certain patent disputes around the world. It also agreed to submit to the jurisdiction of a court or arbitrator when disputes over payment rates arise.
Throughout the FTC's investigation, Google was represented by Susan Creighton of Wilson Sonsini Goodrich & Rosati and John Harkrider of Axinn, Veltrop & Harkrider. The FTC retained Beth Wilkinson of Paul, Weiss, Rifkind, Wharton & Garrison.
'TEMPLATE'
The FTC said Thursday that the threat of injunction by a holder of an essential patent hurts competition. The agreement with Google could be used as a "template" for other patent disputes, it said.
Unlike a court decision, the FTC's agreement with Google is not binding on other companies. But it could give leverage to defendants in disputes with essential patent holders that could be used in court.
"We know in today's world, defendants are getting more aggressive," said Matthew Woods, an antitrust and patent attorney at Robins, Kaplan, Miller & Ciresi. "Defendants will seize on this and tell courts that injunctions are something the court should not even countenance."
But the agreement with Google may not be all good news for patent users, according to Jay Jurata, an antitrust partner at Orrick, Herrington & Sutcliffe, who said that it could have unintended consequences.
The elaborate agreement allows Google to seek injunctions against companies that are unwilling to pay for a license on fair, reasonable and non-discriminatory terms. But the question of when a company is considered an unwilling licensee is one that the FTC may have unwittingly allowed holders of essential patents to manipulate, said Jurata.
"They provided a road map for other standard essential patent holders to engage in opportunistic behavior to paint otherwise willing licensees as unwilling licensees," he said.
Miller of Robins Kaplan also cautioned that the FTC's deal with Google may be unique because of the company's giant size and dominance, which can attract the attention of regulators.
"There are a lot litigants who aren't going to see this agreement as restraining them, because they don't have the same portfolio as Google," Miller said.
(Reporting by Andrew Longstreth; Editing by Eddie Evans and Maureen Bavdek)
Showing posts with label patents. Show all posts
Showing posts with label patents. Show all posts
Tuesday, January 8, 2013
Monday, December 31, 2012
patents on human genes
Percentage of genes that are patented in the U.S.: 18.5%
After Myriad obtained its patents, it sent letters ordering other labs to
stop testing. A survey of U.S. laboratory directors showed:
January 18, 2012
On May 12, 2009, the ACLU and the Public Patent Foundation (PUBPAT) filed a lawsuit charging that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid. The suit charges that the patents stifle diagnostic testing and research that could lead to cures and that they limit women's options regarding their medical care.
The lawsuit, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., was filed on behalf of researchers, genetic counselors, women patients, cancer survivors, breast cancer and women's health groups, and scientific associations representing 150,000 geneticists, pathologists, and laboratory professionals. The lawsuit was filed against the U.S. Patent and Trademark Office, as well as Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the genes, BRCA1 and BRCA2. The lawsuit charges that patents on human genes violate the First Amendment and patent law because genes are "products of nature" and therefore can't be patented.
The U.S. Patent and Trademark Office (PTO) has granted thousands of patents on human genes – in fact, about 20 percent of our genes are patented. A gene patent holder has the right to prevent anyone from studying, testing or even looking at a gene. As a result, scientific research and genetic testing has been delayed, limited or even shut down due to concerns about gene patents.
On March 29, 2010 a New York federal court ruled that the patents on the BRCA1 and BRCA2 genes are invalid. The U.S. Court of Appeals for the Federal Circuit heard Myriad's appeal of that ruling in April 2011.
In July 2011, the appeals court ruled that companies can obtain patents on the genes but cannot patent methods to compare those gene sequences.
After Myriad obtained its patents, it sent letters ordering other labs to
stop testing. A survey of U.S. laboratory directors showed:
- 25% stopped performing a genetic test that they had been offering as a result of gene patent or license-holders exercising their intellectual property rights.
- More than 50% had decided not to develop or perform a genetic test for clinical or research purposes because of a patent.
- More than 90% thought patents had negative effects on the development of genetic tests and increased the cost of testing.
January 18, 2012
On May 12, 2009, the ACLU and the Public Patent Foundation (PUBPAT) filed a lawsuit charging that patents on two human genes associated with breast and ovarian cancer are unconstitutional and invalid. The suit charges that the patents stifle diagnostic testing and research that could lead to cures and that they limit women's options regarding their medical care.
The lawsuit, Association for Molecular Pathology, et al. v. U.S. Patent and Trademark Office, et al., was filed on behalf of researchers, genetic counselors, women patients, cancer survivors, breast cancer and women's health groups, and scientific associations representing 150,000 geneticists, pathologists, and laboratory professionals. The lawsuit was filed against the U.S. Patent and Trademark Office, as well as Myriad Genetics and the University of Utah Research Foundation, which hold the patents on the genes, BRCA1 and BRCA2. The lawsuit charges that patents on human genes violate the First Amendment and patent law because genes are "products of nature" and therefore can't be patented.
The U.S. Patent and Trademark Office (PTO) has granted thousands of patents on human genes – in fact, about 20 percent of our genes are patented. A gene patent holder has the right to prevent anyone from studying, testing or even looking at a gene. As a result, scientific research and genetic testing has been delayed, limited or even shut down due to concerns about gene patents.
On March 29, 2010 a New York federal court ruled that the patents on the BRCA1 and BRCA2 genes are invalid. The U.S. Court of Appeals for the Federal Circuit heard Myriad's appeal of that ruling in April 2011.
In July 2011, the appeals court ruled that companies can obtain patents on the genes but cannot patent methods to compare those gene sequences.
The ingenuity of looting
India-U.S. Fight on Basmati Rice Is Mostly Settled
By SARITHA RAI
Published: August 25, 2001
A Texas company's attempt to patent a type of basmati rice became a touchstone for anti-globalization protest in the 1990's. But the long-simmering issue was largely settled this week, when the United States granted a narrower patent to the company, Ricetec of Alvin, Tex.
The United States originally granted the patent in 1997, touching a nerve in India, leading to a challenge by the Indian government and igniting demonstrations against what was termed a piracy of emerging nations' indigenous products.
After this week's decision, the Indian government said it saw no reason for further dispute. The new patent is limited to a few variants of the rice and will not hamper export of its own basmati product, the government concluded.
Still, scientists in India are complaining about future problems while evaluating the impact, and opposition politicians are agitating for further action.
The protests in the late 1990's were led by Vandana Shiva, who called Ricetec's claim to basmati rice absurd. She termed the limited scope of the final patent largely a success. But, she warned, ''the battle against Ricetec is just the beginning of India's battle against bio-piracy and theft of indigenous plant wealth.''
For most Indians, the basmati controversy went beyond the economic impact of one product. Basmati, an aromatic rice used in virtually every Indian kitchen, is considered a national heritage. The long-grain rice, whose grains remain petal-soft and separate after cooking, grows in the Punjab region in the north, and across the border in Pakistan.
In 1997, the United States initially granted a broad basmati patent to Ricetec, which developed several strains of rice marketed under various names as similar to basmati. Of the 20 claims made by the company, most related to the rice plant, with others covering the grain and farming methods.
The American decision created an uproar as bitter Indians expressed frustration that successive governments had let India lose claim to basmati, which had never been trademarked. India and its rival Pakistan said they would fight the patent, calling it a threat to the economic survival of thousands of farmers in the subcontinent. More than 50,000 people demonstrated in front of the United Sates Embassy against the patent.
At the World Trade Organization conference in Seattle, India protested the agreement on trade-related intellectual property rights, which had led to a spate of patents for western companies, including for basmati rice. Another coalition denounced the basmati rice patent at the Seattle meeting, and called on W.T.O. members to accept that the rights of farmers and communities precede intellectual property rights.
At the Summit of the Americas in Quebec, activists protested against the prospect of intellectual property protection that would work to the advantage of multinationals involved in genetic engineering of agricultural products -- like basmati developed over hundreds of years -- at the expense of small farmers in developing countries.
For years, India largely ignored any claim or legal protection for growers and marketers of basmati. A bill has been introduced to recognize produce as belonging to a specific geographical area, but it is still pending before a panel of the Parliament. Given that basmati is not patented by geographic location even within India, the country's international patent appeal appears weak.
For over two decades ''basmati'' has been used in the United States to describe long-grain aromatic rice grown domestically. This usage went unchallenged by India, so much so that the patent claims were under the plea of ''long usage'' provided for in trade-related intellectual property rights.
The premium grain stacked up in American supermarkets under brand names like Calmati, which comes from California, and Texmati and Kasmati, which are marketed by Ricetec.
Indian basmati exporters dismiss these varieties as basmati imitations. The distinct aroma and the texture of basmati comes from the Indian soil irrigated by waters from the Himalayan rivers, they say.
India urged the United States Patent and Trade Office in April 2000 to re-examine certain Ricetec claims that India felt posed a threat to Indian basmati exports to the United States. In hundreds of pages of scientific evidence, India argued that its basmati varieties already had the characteristics claimed as unique by Ricetec.
India protested Ricetec's claim to the term basmati, and insisted that the appellation should be reserved for rice grown in a specific region in India. The argument is much like the one that has been used successfully to limit Champagne to France and Scotch whiskey to Scotland.
Ricetec subsequently withdrew some 15 claims. The American patent office just issued a patent on the claims dealing with three strains of the rice developed by the company.
While the government said it was satisfied, opposition politicians stalled proceedings in the Indian Parliament demanding that the government challenge the patent.
On Tuesday, the commerce minister, Digvijay Singh, tried to pacify members of Parliament, saying Ricetec had received only a varietal patent so it could sell its rice as a superior strain of basmati. India could also develop its own different strains of basmati, he said.
Ms. Shiva, the protester, saw the narrowing of the patent as a significant accomplishment. ''What remains is a farmers' battle, because Ricetec's strains have been bred from traditional Indian and Pakistani basmati varieties,'' she said. Activists will continue to urge the government to pursue a trademark battle for the basmati name.
But scientists, including Dr. S. A. Siddiq of the Indian Council of Agricultural Research, remain skeptical about India's ability to thwart piracy of traditional basmati strains. ''India exports a million tons of basmati a year, and India is complacent because the Ricetec patent does not hinder that,'' Dr. Siddiq said.
The issue goes beyond mere protection of trade and export of the rice. ''The basmati patent came so suddenly that India has just woken up to the threat to its traditional plant wealth,'' Dr. Siddiq said. ''We have to get our laws in place.''
Ms. Shiva says that allowing multinational companies to patent indigenous produce and knowledge is a theft and has resulted in the revoking of a European patent for the traditional Indian neem tree. Patent fights are on for medicinal turmeric and tamarind.
''Granting exclusive patent rights amounts to stealing economic options of daily survival from the developing world,'' Ms. Shiva said.
The Mayacoba Bean is a case of biopiracy, where Larry Procter, a Colorado executive in the bean industry cultivated yellow beans he bought in Mexico on vacation for which he received a US patent two years later on all yellow beans of this variety. Larry’s company, Pod-Ners, admits that its Enola bean, (named after Larry Proctor’s wife), is a descendant of the traditional Mexican bean from the Andes, the Mayacoba, but that it has a better yellow color and a more consistent shape. By obtaining a patent and a U.S. Plant Variety Protection Certificate, he secured what amounted to a legal monopoly over yellow beans sold in the United States. Under the terms of the patent, he can therefore sue anyone in the United States who sells or grows a bean that he considered to be his particular shade of yellow. Procter also profits from yellow beans imported from Mexico by imposing on them a six cent-per-pound royalty. As a result, both farmers in the United States and particularly in Northern Mexico have suffered great economic hardship. The case has stimulated great debate over whether traditional knowledge and/or genetic resources should be patentable in the first place. As the number of patents filed by large corporations for native crops increases, activists become more concerned about the adverse effects of these patents on developing countries and particularly indigenous people.
THE SBMATE PATENT:
By SARITHA RAI
Published: August 25, 2001
A Texas company's attempt to patent a type of basmati rice became a touchstone for anti-globalization protest in the 1990's. But the long-simmering issue was largely settled this week, when the United States granted a narrower patent to the company, Ricetec of Alvin, Tex.
The United States originally granted the patent in 1997, touching a nerve in India, leading to a challenge by the Indian government and igniting demonstrations against what was termed a piracy of emerging nations' indigenous products.
After this week's decision, the Indian government said it saw no reason for further dispute. The new patent is limited to a few variants of the rice and will not hamper export of its own basmati product, the government concluded.
Still, scientists in India are complaining about future problems while evaluating the impact, and opposition politicians are agitating for further action.
The protests in the late 1990's were led by Vandana Shiva, who called Ricetec's claim to basmati rice absurd. She termed the limited scope of the final patent largely a success. But, she warned, ''the battle against Ricetec is just the beginning of India's battle against bio-piracy and theft of indigenous plant wealth.''
For most Indians, the basmati controversy went beyond the economic impact of one product. Basmati, an aromatic rice used in virtually every Indian kitchen, is considered a national heritage. The long-grain rice, whose grains remain petal-soft and separate after cooking, grows in the Punjab region in the north, and across the border in Pakistan.
In 1997, the United States initially granted a broad basmati patent to Ricetec, which developed several strains of rice marketed under various names as similar to basmati. Of the 20 claims made by the company, most related to the rice plant, with others covering the grain and farming methods.
The American decision created an uproar as bitter Indians expressed frustration that successive governments had let India lose claim to basmati, which had never been trademarked. India and its rival Pakistan said they would fight the patent, calling it a threat to the economic survival of thousands of farmers in the subcontinent. More than 50,000 people demonstrated in front of the United Sates Embassy against the patent.
At the World Trade Organization conference in Seattle, India protested the agreement on trade-related intellectual property rights, which had led to a spate of patents for western companies, including for basmati rice. Another coalition denounced the basmati rice patent at the Seattle meeting, and called on W.T.O. members to accept that the rights of farmers and communities precede intellectual property rights.
At the Summit of the Americas in Quebec, activists protested against the prospect of intellectual property protection that would work to the advantage of multinationals involved in genetic engineering of agricultural products -- like basmati developed over hundreds of years -- at the expense of small farmers in developing countries.
For years, India largely ignored any claim or legal protection for growers and marketers of basmati. A bill has been introduced to recognize produce as belonging to a specific geographical area, but it is still pending before a panel of the Parliament. Given that basmati is not patented by geographic location even within India, the country's international patent appeal appears weak.
For over two decades ''basmati'' has been used in the United States to describe long-grain aromatic rice grown domestically. This usage went unchallenged by India, so much so that the patent claims were under the plea of ''long usage'' provided for in trade-related intellectual property rights.
The premium grain stacked up in American supermarkets under brand names like Calmati, which comes from California, and Texmati and Kasmati, which are marketed by Ricetec.
Indian basmati exporters dismiss these varieties as basmati imitations. The distinct aroma and the texture of basmati comes from the Indian soil irrigated by waters from the Himalayan rivers, they say.
India urged the United States Patent and Trade Office in April 2000 to re-examine certain Ricetec claims that India felt posed a threat to Indian basmati exports to the United States. In hundreds of pages of scientific evidence, India argued that its basmati varieties already had the characteristics claimed as unique by Ricetec.
India protested Ricetec's claim to the term basmati, and insisted that the appellation should be reserved for rice grown in a specific region in India. The argument is much like the one that has been used successfully to limit Champagne to France and Scotch whiskey to Scotland.
Ricetec subsequently withdrew some 15 claims. The American patent office just issued a patent on the claims dealing with three strains of the rice developed by the company.
While the government said it was satisfied, opposition politicians stalled proceedings in the Indian Parliament demanding that the government challenge the patent.
On Tuesday, the commerce minister, Digvijay Singh, tried to pacify members of Parliament, saying Ricetec had received only a varietal patent so it could sell its rice as a superior strain of basmati. India could also develop its own different strains of basmati, he said.
Ms. Shiva, the protester, saw the narrowing of the patent as a significant accomplishment. ''What remains is a farmers' battle, because Ricetec's strains have been bred from traditional Indian and Pakistani basmati varieties,'' she said. Activists will continue to urge the government to pursue a trademark battle for the basmati name.
But scientists, including Dr. S. A. Siddiq of the Indian Council of Agricultural Research, remain skeptical about India's ability to thwart piracy of traditional basmati strains. ''India exports a million tons of basmati a year, and India is complacent because the Ricetec patent does not hinder that,'' Dr. Siddiq said.
The issue goes beyond mere protection of trade and export of the rice. ''The basmati patent came so suddenly that India has just woken up to the threat to its traditional plant wealth,'' Dr. Siddiq said. ''We have to get our laws in place.''
Ms. Shiva says that allowing multinational companies to patent indigenous produce and knowledge is a theft and has resulted in the revoking of a European patent for the traditional Indian neem tree. Patent fights are on for medicinal turmeric and tamarind.
''Granting exclusive patent rights amounts to stealing economic options of daily survival from the developing world,'' Ms. Shiva said.
The Mayacoba Bean is a case of biopiracy, where Larry Procter, a Colorado executive in the bean industry cultivated yellow beans he bought in Mexico on vacation for which he received a US patent two years later on all yellow beans of this variety. Larry’s company, Pod-Ners, admits that its Enola bean, (named after Larry Proctor’s wife), is a descendant of the traditional Mexican bean from the Andes, the Mayacoba, but that it has a better yellow color and a more consistent shape. By obtaining a patent and a U.S. Plant Variety Protection Certificate, he secured what amounted to a legal monopoly over yellow beans sold in the United States. Under the terms of the patent, he can therefore sue anyone in the United States who sells or grows a bean that he considered to be his particular shade of yellow. Procter also profits from yellow beans imported from Mexico by imposing on them a six cent-per-pound royalty. As a result, both farmers in the United States and particularly in Northern Mexico have suffered great economic hardship. The case has stimulated great debate over whether traditional knowledge and/or genetic resources should be patentable in the first place. As the number of patents filed by large corporations for native crops increases, activists become more concerned about the adverse effects of these patents on developing countries and particularly indigenous people.
THE SBMATE PATENT:
AMERICAN INGENUITY OR LOOTING OF A TANZANIAN RESOURCE?
CHARLOTTE HINKLE
April 10, 2011
Today’s pirates don’t come with eye patches and daggers clenched in their teeth, but with sharp suits and claiming intellectual property rights. So those rich countries which take seeds away from their poorer neighbors and then try to patent them are guilty of theftplain and simple: biopirates by another name.
–New Scientist
Thursday, December 27, 2012
Carnegie Mellon patents
Thu Dec 27, 2012 9:19am EST
* Jury found Marvell infringed two Carnegie Mellon patents
* Damages could be tripled
* Marvell says evidence, law do not support jury findings
* Jury found Marvell infringed two Carnegie Mellon patents
* Damages could be tripled
* Marvell says evidence, law do not support jury findings
Friday, February 17, 2012
slide-to-unlock patent
Apple has won a patent dispute against Motorola Mobility regarding a "slide-to-unlock" feature on smartphones.
The judgement marks Apple's first patent victory over Motorola in any part of the world.Patent consultant Florian Mueller said the ruling could affect patent disputes involving Android device makers worldwide.
Motorola said it planned to appeal and the judgement would have "no impact" on supply or future sales.
A spokeswoman for the Motorola said: "Today's ruling in the patent litigation brought by Apple in Munich, Germany, concerns a software feature related to phone unlocking in select Motorola devices sold in Germany.
"Motorola has implemented a new design for the feature. Therefore, we expect no impact on current supply or future sales."
Apple said it would not be commenting on the decision.
'Global battle' Motorola Mobility is in the process of being acquired by Google, and most of its handsets run on the search firm's mobile operating system, Android.
The Android system is Apple's closest rival in the mobile market.
Mr Mueller, a patent expert who has in the past consulted for Microsoft, described the ruling as a "very significant win for Apple against Android".
"After Google closes the acquisition of Motorola Mobility, the Apple-Motorola Mobility dispute will soon gain importance transcending that of the global battle with Samsung," he said.
The disputed patent is in relation to this iPhone feature "Apple is already asserting the slide-to-unlock patent in different jurisdictions against all three leading Android device makers and might use it against even more of them going forward."
The patent in question - EP1964022 - relates to the process of unlocking a smartphone by simply swiping a finger from one area of the screen to another.
A second patent ruling, which covers a method of scrolling through pictures in a photo gallery on mobile device, was also due on Thursday but was postponed by the court.
Friday, October 14, 2011
Diamond v. Chakrabarty
Genetic engineer Ananda Mohan Chakrabarty, working for General Electric, had developed a bacterium (derived from the Pseudomonas genus) capable of breaking down crude oil, which he proposed to use in treating oil spills. He requested a patent for the bacterium in the United States but was turned down by a patent examiner, because the law dictated that living things were not patentable.
The Board of Patent Appeals and Interferences agreed with the original decision; however, the United States Court of Customs and Patent Appealsoverturned the case in Chakrabarty's favor, writing that "the fact that micro-organisms are alive is without legal significance for purposes of the patent law." Sidney A. Diamond, Commissioner of Patents and Trademarks, appealed to the Supreme Court.
The Supreme Court case was argued on March 17, 1980 and decided on June 16, 1980.
In a 5–4 ruling, the court ruled in favor of Chakrabarty, and upheld the patent, holding that:
- A live, human-made micro-organism is patentable subject matter under 35 U.S.C. § 101. Respondent's micro-organism constitutes a "manufacture" or "composition of matter" within that statute.
http://en.wikipedia.org/wiki/Diamond_v._Chakrabarty
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