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What About Know-How: Heightened Obviousness And Lowered Disclosure Is Not A Panacea To The American Patent System For Biotechnology Medication And Pharmaceutical Inventions In The Post-Ksr Era, Yi-Chen Su
Marquette Intellectual Property Law Review
In KSR International Co. v. Teleflex, Inc., the Supreme Court rejected the Federal Circuit's rigid application of the teaching, suggestion, or motivation test (TSM test), and replaced it with an expansive and flexible approach, in determining the question of obviousness. Nevertheless, an expansive and flexible approach to obviousness may not be consistent with the international norms of practice if it is applied literally. The U.S. Patent and Trademark Office's literal application of the decision has essentially created another set of inflexible rules, which is contrary to the Supreme Court's intent. The Federal Circuit's recent decision in In re Kubin cautiously …
Patenting The Biological Bounty Of Nature: Re-Examining The Status Of Organic Inventions As Patentable Subject Matter, Burton T. Ong
Patenting The Biological Bounty Of Nature: Re-Examining The Status Of Organic Inventions As Patentable Subject Matter, Burton T. Ong
Marquette Intellectual Property Law Review
Mr. Ong discusses the controversy regarding biotechnology patents. Opponents of biotechnology patents are concerned that these patents show disrespect for life and nature, expropriate the traditional knowledge of indigenous communities, and encourage practices that threaten the environment. Proponents of biotechnology patents argue that patents are, at worst, neutral on such issues because they only grant a right to exclude; moreover, such patents encourage innovation in the public interest. Ong focuses instead on whether an individual inventor deserves an intellectual property right based on his contributions to a modified living organism or an organic substance derived from a living organism. He …
Tailoring Patent Policy To Specific Industries, Dan L. Burk
Tailoring Patent Policy To Specific Industries, Dan L. Burk
Marquette Intellectual Property Law Review
Mr. Burk illustrates that federal courts have diverged along industry-specific paths when deciding patent cases. Burk highlights courts' disparate treatment of the biotechnology and computer software industries within the uniform patent statute. Due to industries' differing requirements for innovation and development, Professor Burk argues that the currently general patent statute and its incentive to innovate may be improved by tailoring it to specific industries. Burk creates a dialogue on what kinds of statutory schemes promote innovation. Citing the Supreme Court's statement in Diamond v. Chakrabarty that the patent statute is meant to cover anything under the sun made by man, …
Stemming The Stem Cell Setback, Patrick J. Fleis
Stemming The Stem Cell Setback, Patrick J. Fleis
Marquette Intellectual Property Law Review
This Comment highlights the recent federal funding setbacks in the biotechnology industry and considers the resulting challenges to future research collaboration. After providing a historical background to stem cell technology, Mr. Fleis examines the passionately opposed public responses to the technology's use of embryos and to its future applications. Fleis continues by noting past legislative initiatives that have accelerated the ease of patenting biotechnology and research findings in general. The Comment addresses several possible solutions to the tension between limited government funding and continued stem cell research, such as the adoption of a more relaxed experimental use standard. Stem cell …
Quo Vadis?, Arthur J. Gajarsa
Quo Vadis?, Arthur J. Gajarsa
Marquette Intellectual Property Law Review
At the Fifth Annual Honorable Helen Wilson Nies Memorial Lecture in Intellectual Property, held by Marquette University Law School on April 22, 2002, the Honorable Arthur J. Gajarsa delivered a speech entitled "Quo Vadis?" or "Where goest thou?" After articulating the strides made in intellectual property law over the past 20 years, Judge Gajarsa proposed and explained three technical areas where the court may see the most action over the next 20 years: (1) software and business methods; (2) biotechnology; and (3) nanotechnology.
March-In Rights Under The Bayh-Dole Act: Public Access To Federally Funded Research , Mary Eberle
March-In Rights Under The Bayh-Dole Act: Public Access To Federally Funded Research , Mary Eberle
Marquette Intellectual Property Law Review
Ms. Eberle examines the Bayh-Doyle Act of 1980, which allows small entities to retain patent title to inventions arising from federally funded research. The Act includes a march-in rights provision, which permits a petitioning third party to force the small entity to grant the petitioner a license where the original licensee fails to commercialize the technology. Ms. Eberle discusses the substance of the Act, focusing on its march-in rights provision. Next, Eberle chronicles a march-in rights attempt by the biotechnology company CellPro to obtain a license to Johns Hopkins University patents and the subsequent court battle. After offering an analysis …