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.

This is a huge Month for IP in Seattle. There are 4 major Events happening between the 7th and the 28th:

13th Annual Intellectual Property Institute
Seattle University CLE on Software and Piracy
Washington State Patent Law Association CLE
Music in the New Millennium

I will be live blogging from both the 13th Annual IP Institute and the Music for the New Millennium event. I will be in New Orleans for the 2009 Nonprofit Technology Conference for the other two. If anyone is interested in attending and representing the FFIP / Free Culture point of view and would like to blog about it please contact me (Brian at freedomforip.org). I will also be adding these events to the FFIP Google calendar (Along with the NOLA conference).

13th Annual Intellectual Property Institute

Date: March 7th
Event: IP Conference
Location: WA Convention Center
Cost: $225 GA, $100 for first 20 students

Speakers:
20 plus Highlights include:
Joseph Miller, Lewis and of Clark Law, speaking on recent supreme court cases
Bruce E.H. Johnson, Davis Wright Tremaine, speaking on Fair Use and the First Amendment
There is even a whole panel on Second Life and Online Liability!

The Intersection of Intellectual Property, Patent Law, and Software Piracy

Date: March 14th
Event: Software CLE
Location: Seattle University Law School

Speakers:
Judge James P. Donohue, Magistrate Judge, Western District of Washington
Katheryn Frierson, Assistant U.S. Attorney, Criminal Division, U.S. Attorney’s Office, Western District of Washington
William J. Harmon, Senior Attorney, Microsoft Corporation, Redmond, WA
Michael D. Stein, Partner-in-charge, Woodcock Washburn, Seattle, WA

Register Online for the SU Software Piracy CLE

Washington State Patent Law Association CLE

Date: March 19th
Event: Lunch CLE on Patents
Location: Washington Athletic Club, First Floor

Schedule
Registration 11:30 a.m.
WSPLA Business 11:55 a.m. – Noon (Please note early start)
Program and Lunch: Noon – 1:30 p.m. (Please note due to volume of material to cover, the Program will begin at noon sharp)

Cost: WSPLA Members $55 Students $35 Others: $75
Panelists:
-Dale R. Cook, Intellectual Ventures
-Scott R. Hayden, Amazon.com
-Jennifer K. Johnson, Zymogenetics
-Brian C. Park, Dorsey & Whitney

Cases Discussed:
SanDisk Corp. v. STMicroelectronics, Inc. (Federal Circuit repudiates “reasonable apprehension of suit” standard for patent declaratory judgment actions and might allow DJ actions in response to any invitation to license)
In re Comisky (Method claims that depend entirely on use of mental processes do not contain patentable subject matter)
In re Nuijten (Federal Circuit says electrical signal not a “manufacture” and therefore not patentable subject matter)
In re Seagate (Federal Circuit replaces duty of due care standard for avoiding enhanced damages with “objective recklessness” standard)
KSR Intl v. Teleflex (Supreme Court rejects rigid application of Federal Circuit’s “teaching, suggestion or motivation” test for obviousness)

Music in the New Millennium

Date: March 28th
Event: Future of Music panel talk
Location: Davis Wright Tremaine LLP, 1201 Third Ave, 22nd Floor Seattle Wa
Cost: Suggested contribution of $15 (law students are free).

Speakers:
Dave Dederer Lead singer of Presidents of the United States of America and VP of Content for Melodeo
Robert Sullivan, Music attorney for Johnny Cash, Randy Travis
Dan Sheeran, SVP RealNetworks
Online Registration

This week Seattle University and Seattle University Law hosted a conference on Globalization & Justice from a critical Interdisciplinary perspective. The Friday keynote speech was not a speech, but instead a thought experiment focused on changing the way we think about scholarship. Francisco Valdes did a great job of engaging the group in thinking about how to democratize social justice as a grass roots community movement.

Here are my notes from his talk:

Background Assumptions:
1. Community is essential for new knowledge (without Community scholarship is hollow and removed from the real)
2. Can we approach Social Justice scholarship without being critical?
3. The processes is ultimately Political
4. Justice needs to be viewed through identities
5. Communities define Identities
6. Diversity produces conflict and possibly trust as communities and identities interact

Thought Experiment:
How can we build a framework to allow the interaction essential to building understanding between communities?

Question:
How do we engage the people in a movement when they are tethered to the old system for livelihood?
Answer:
It is a process of hard work similar to gardening. It takes hands on work in the community that enables people to move away from the system they are tied to. It will not happen overnight, but it can happen.

Francisco Valdes, Professor of Law, earned a B.A. in 1978 from the University of California at Berkeley, a J.D. with honors in 1984 from the University of Florida College of Law, and a J.S.M. in 1991 and a J.S.D. in 1994 from Stanford Law School. Between law school and his graduate law work, he practiced with Miami and San Francisco law firms, and taught as an adjunct professor at Golden Gate Law School. After receiving his J.S.D. from Stanford, he taught at California Western School of Law in San Diego, joining the UM faculty in 1996. He is a leading figure in the LatCrit movement and in gay rights scholarship and is co-chair of LatCrit, Inc. He teaches civil procedure, comparative law, critical race theory, law and sexuality, law and film, and U.S. constitutional law.

Thanks to Margaret Chon for organizing the conference.

Today at Seattle University Law, Andrew Culbert spoke on Patent Law and Trolls. Andy is associate general counsel at Microsoft in charge of patent litigation. This is the second time I have seen him speak; he was one of the session leaders at Lewis and Clark’s CLE on non-obviousness.

Andy started the presentation with some statistics from Troll Tracker, a patent blog that I highly recommend. Last year 35 Fortune 100 companies had been sued 500 times for patent infringement. This is an average of 14 times per company for patent infringement. Microsoft tops this list with 43 suits last year.

The first topic was, “Why is Microsoft getting sued?”
1. Large verdicts from juries, which are often overturned
2. Most cases are NOT filed by competitors but instead by Trolls
3. Recent trend, post-1980, to allow a liberal approach to patent claims
4. Consolidation of patents to the Federal Circuit
5. Little to no documentation for prior art on software
6. Patents w/o clear limitations (Software patents are often functional and nonspecific)
7. Integrated products which allow a relatively minor patent to claim against a large product like Windows or Office
8. Damages are astronomical in the US, $500M to $1.5B, several times larger then anywhere else

One of the most interesting parts of the talk was a list of Supreme Court cases that reflect improvements in the patent system:
Ebay — Limits on injunctions
KSR — New rules on obviousness
MedImmune — Easer to challenge patents
AT&T — Limits on territorial scope
LEG v. Quanta (Currently on review by the Supreme Court) — May expand patent exhaustion

Also from the Federal Circuit Court:
Seagate – limits on willful infringement
Nuijten /Comiskey – limits on patentablity

FFIP was able to get in one Question at the end of the talk:
What legislative changes do you think would make the most significant positive changes for the patent system?

Answer(paraphrased):
1. Changes to Damage calculations. The current damage formula allows for extremely high damage awards that encourages questionable litigation.

2. Possibly Venue reform. It is difficult to limit venue for real claimants, but reform that limits nonpracticing entity or shell cooperations could make a difference. It is just not an easy rule to craft and allow real claims to bring suits in home jurisdictions.

This was a great presentation. Thanks to the speaker Andy Culbert, The IPLS at SU who sponsored the presentation and Apollo Fuhriman, a 2L who organized the event.

Photo by: Dan Schlatter