A very important case was decided today Bilski.  Read the desision here.

Therefore, we also conclude that the “useful, concrete and
tangible result” inquiry is inadequate and reaffirm that the machine-or-transformation
test outlined by the Supreme Court is the proper test to apply.19

Foot note :
19 As a result, those portions of our opinions in State Street and AT&T
relying solely on a “useful, concrete and tangible result” analysis should no longer be
relied on.

I soo want to skip my afternoon classes and read the 130 pages… hmmm more to come later.

Past articles:

ACLU, Patent Lawyers of Washington and End Software patents on Bilski before the decision.

Introducing our keynote and plenary speakers!

Some people might have noticed that on the EFF Wins Savage v. CAIR! Fair Use in Action
post the link to the decision downloaded a PDF of the judgment hosted on an external site that we have not mentioned in the past – JDSupra. We normally try to link to AltLaw due to their open access model. For documents not yet on AltLaw we have decided to try using JD Supra. Here is little more information about the service:

JD Supra is an online repository of legal documents – a community-based research tool that offers everyone free access to the law and its practitioners:

• A community, in which members of the legal world post their court filings, decisions, and articles to a searchable database that is free for anyone to use.
• A real-time news source, in which the media 1) has instant and simultaneous access to important court filings and decisions, and 2) can find legal experts easily.

The overall structure of the site along with an opportunity to reach a legal audience has made the site appealing.  Honestly, I have been a little wary of using the service.  The main funding model appears to be firm sponsorship and paying for links on your profile. It is not the ideal model for public interest.  This means that FFIP does not get a link back from the site without spending $450.  As a volunteer organization with no real budget, this is not possible.  I feel slightly bad contributing time and links to an org that does not reciprocate.  If they had an lower donation level for public service and educational outreach orgs, or an option to earn a link through posting a certain amount of high quality content, I would feel better about using the service.

On the positive side EFF is one of the site’s sponsors.  A good service with a supporter like EFF is worth trying even over minor objections.

FFIP Blog Review:

Author: Dennis D. Crouch, law professor and patent attorney, University of Missouri
Blog Name: The Patent Blog, Patently-O
Post Frequency: Daily
Content: All things patent oriented. Anticipation, CAFC, Claims, CLE, Contributory Infringement, Damages, Design Patent, Doctrine of Equivalents, Enablement, Inducement, Injunctions, Means Plus Function, Motivation to Combine, Obviousness, On Sale, Legislation, Patent Prosecution, PHOSITA, Priority Rights, Public Use, Software, Statutory Construction, USPTO, Vitiation

Sample post after the jump:
(more…)

Here are the top three organizations that are fighting bad patents. Take Action! More on the patents coming tomorrow as we hear oral arguments for in re Bilski.

An EFF Initiative To Protect Innovation and Free Expression

Tired of bogus software patents? So are we! To combat these annoying and often dangerous legal weapons, EFF has launched the Patent Busting Project to take down some of worst offenders.

We need your help! Take a look at the Top Ten Most Wanted culprits on our list, and let us know if you have any leads on technology that predates them (called “prior art”) that we can use to challenge their validity. Visit the patent busting project to take action.

FSF – End Software Patents

Software innovation happens without government intervention. Virtually all of the technologies you use now were developed before software was widely viewed as patentable. The Web, email, your word processor and spreadsheet program, instant messaging, or even more technical features like the psychoacoustic encoding and Huffman compression underlying the MP3 standard—all of it was originally developed by enthusiastic programmers, many of whom have formed successful business around such software, none of whom asked the government for a monopoly. So if software authors have a proven track-record of innovation without patents, why force them to use patents? What is the gain from billions of dollars in patent litigation?

PUBPAT is a not-for-profit legal services organization that represents the public interest against the harms caused by errors in the patent system, particularly the harms caused by undeserved patents and unsound patent policy. PUBPAT provides the general public and specific persons or entities otherwise deprived of access to the system governing patents with representation, advocacy and education. PUBPAT accomplishes its mission through two core activities.

First, PUBPAT protects the public domain from being recaptured in new patents. PUBPAT’s primary tool for protecting the public domain is filing requests for re-examination with the PTO. A request for re-examination is the formal administrative mechanism used to ask the PTO to revoke an issued patent on the grounds that the idea it claims is actually not new, but is instead nothing more than
a reformulation of information that was already in the public domain.

Second, PUBPAT advocates for improvements to the patent system and educates the public about the esoteric issues implicated by patents, specifically how they impact everyday life. PUBPAT advocates on behalf of sound patent policy before the courts, Congress, in the PTO and through participation in relevant conferences, while PUBPAT educates the public though presentations, one-on-one discussions and publications.

The Evolution of India’s Patent Regime: Implications for Public Health and Pharmaceutical Innovation.

In 2005 Professor Mueller spent time in India studying the changes India to comply with World Trade Organization(WTO) standards, primarily compliance with TRIPS. This was a drastic change as India traditionally did not grant patents on pharmaceuticals. Only about 5 percent of the populace in India had health insurance. During the time of Colonial rule, British-imposed patent statutes caused a scarcity of drugs and increased external control over distribution. After independence, India passed a new patent act that prohibited patents on any medicinal substance. Most recently India has joined the WTO and TRIPS which has prompted India to change its domestic law to allow patents for all inventions including drugs. Generics made before 2005 are not affected by the new patent laws. 80 percent of new drug patents in India are patents from outside entities. The first Indian patent was granted to PEGASYS a swiss drug that fights Hepatits C. 11 million citizens a year in India suffer from Hepatitus C. The cost for the PEGASYS treatment in India is $10,000 a year. 80 percent of the citizens live on $2 a day or less.

India’s Patent act has a unique provision designed to prevent evergreening :

Section 3 (d) “the mere discovery of a new form of a known substance which does not result in the enhancement of the known efficacy of that substance or the mere discovery of any new property or new use for a known substance or of the mere use of a known process, machine or apparatus unless such known process results in a new product or employs at least one new reactant. Explanation – For the purposes of this clause, salts, esters, ethers, polymorphs, metabolites, pure form, particle size, isomers, mixtures of isomers, complexes, combinations and other derivatives of known substance shall be considered to be same substance, unless they differ significantly in properties with regard to efficacy”

Novartis AG v. Union of India challenged the legality of section 3(d) under TRIPS. The court passed on this issue stating that this was a question for the WTO.

Q: does the patent act encourage Foreign Direct Investment (FDI)?

A:FDI is probably more affected by other factors such as the lower cost of skilled labor. For example a chemist in India is only paid 20% of what she is paid in the US.

Here are the slides from the presentation:

| View | Upload your own

For more information check out her paper on the same topic:

The Tiger Awakens: The Tumultuous Transformation of India’s Patent System and the Rise of Indian Pharmaceutical Innovation, 68 University of Pittsburgh L. Rev. 491 (2008), available at SSRN: http://ssrn.com/abstract=923538. (Registration required)

Freedom for IP will be at LinuxFest Northwest 2008. We will be staffing an education vendor table and talking about the need to fight Software and Method Patents. If you are attending stop by and talk to us.

Our primary reasons for attending are two fold:

First to educate and reach out to people on patent based issues that threaten the open sourse community, while also recruiting grass roots activist to help change the landscape of patents.

Second to promote other orginizations that are actively involved in the patent fight. For exapample:

Public Patent Foundation
EFF’s Patent Busting

NYU and PTO’s Peer to Patent

FSF End Software Patents campaign

Totem Graphic by Irvin Dorfman

SU Law Talk: The Evolution of India‘s Patent System: Implications for Public Health and Pharmaceutical Innovation

Date: Tuesday April 15th

Time: Noon – 1PM

Place: Room 109

India developed a world-class generic drug manufacturing industry by excluding pharmaceutical products from patent protection in 1972. In 2005, India reintroduced pharmaceutical patenting in order to comply with its obligations as a WTO member. For an emerging superpower still mired in poverty and public health crises, the change did not come quickly or without controversy. Multiple influences shape India‘s “mosaic view” of patents: a huge population, widespread poverty, lack of health insurance, wariness towards foreign influences, a developed but fragmented pharmaceutical sector, a fledgling entrepreneurial culture of innovation among indigenous pharmaceutical and biotechnology firms, a fragile coalition government, and a vocal citizenry remarkably aware of esoteric patent law developments. Professor Mueller’s research included a sabbatical visit to India in late 2005 to interview experts and gather data on the ground. Concluding that the new patents regime is neither the fully-Westernized panacea hoped for by its pro-TRIPS advocates nor the unmitigated disaster for the Indian public predicted by its fiercest critics, Professor Mueller will offer recommendations for the future of India‘s evolving patent system.

Papers By Professor Mueller on India’s patent System:

J. Mueller, The Tiger Awakens: The Tumultuous Transformation of India‘s Patent System and the Rise of Indian Pharmaceutical Innovation, 68 University of Pittsburgh L. Rev. 491 (2008), available at SSRN: http://ssrn.com/abstract=923538.

J. Mueller, Taking TRIPS to India-Novartis, Patent Law, and Access to Medicines, New Eng. J. Med. (Feb. 8, 2007), at 541-43, available at http://content.nejm.org/cgi/reprint/356/6/541.pdf.

J. Mueller, Biotechnology Patenting in India: Will Bio-Generics Lead a “Sunrise” Industry to Bio-Innovation?, 76 UMKC L. Rev. 437 (forthcoming 2008), available at SSRN: http://ssrn.com/abstract=1087131.

PS: I will be live blogging the talk for FFIP tomorrow.

In this image, the proportion of the world’s patents granted per year is represented for each nation by its size on the map from 2002. It is easy to see what nation ‘s will own future profits control the information age. It also questions why developing nations that control no patents would want to sign on to agreements like TRIPS.

Taken from SASI Group (University of Sheffield) and Mark Newman (University of Michigan), www.worldmapper.org