The alchemy of junk: patent law and non-coding DNA

This article considers the recent international controversy over the patents held by a Melbourne firm, Genetic Technologies Limited (GTG), in respect of non-coding DNA and genomic mapping. It explores the ramifications of the GTG dispute in terms of licensing, litigation, and policy reform, and—as a result of this dispute—the perceived conflict between law and science. GTG has embarked upon an ambitious licensing program with twenty seven commercial licensees and five research licensees. Most significantly, GTG has obtained an exclusive licence from Myriad Genetics to use and exploit its medical diagnostics in Australia, New Zealand, and the Asia-Pacific region. In the US, GTG brought a legal action for patent infringement against the Applera Corporation and its subsidiaries. In response, Applera counterclaimed that the patents of GTG were invalid because they failed to comply with the requirements of US patent law, such as novelty, inventive step, and written specifications. In New Zealand, the Auckland District Health Board brought legal action in the High Court, seeking a declaration that the patents of GTG were invalid, and that, in any case, the Board has not infringed them. The New Zealand Ministry of Health and the Ministry of Economic Development have reported to Cabinet on the issues relating to the patenting of genetic material. Similarly, the Australian Law Reform Commission (ALRC) has also engaged in an inquiry into gene patents and human health; and the Advisory Council on Intellectual Property (ACIP) has considered whether there should be a new defence in respect of experimental use and research.

Prosecution history estoppel in the UK?

The doctrine of 'prosecution history estoppel' (PH estoppel) as developed in the United States has strong intuitive appeal, especially when applied to counterbalance a related patent law principle, the doctrine of equivalents. The doctrines are receiving increasing attention in US patent decisions, to the point where one patent litigator recently compared them to "two cars that keep bumping fenders. They are frequently returned to the shop for repairs". Could PH estoppel find its way into UK patent law? This article briefly examines the doctrine, its evolution in the US and the problems associated with importing the doctrine into the UK. As the EU legislation stands, Article 69 and the Protocol to the European Patent Convention (EPC) pose serious obstacles to using the doctrine directly in claim construction. However there appears to be some scope to apply the doctrine as a limited form of defence in infringement actions.

Aluminosilicates of zeolite N structure

A process for making aluminosilicates of zeolite N structure comprising the steps of: (i) combining a water soluble monovalent cation, a solution of hydroxyl anions and an aluminosilicate to form a resultant mixture having a pH greater than 10 and a H.sub.2O/Al.sub.2O.sub.3 ratio in the range 30 to 220; (ii) heating the resultant mixture to a temperature of between 50.degree. C. and boiling point of the mixture for a time between 1 minute and 100 hours until a crystalline product of zeolite N structure is formed as determined by X-ray diffraction or other suitable characteristic; and (iii) separating the zeolite N product as a solid from the mixture.

Alumino-silicate derivatives

The formation of new materials in the form of alumino-silicate derivatives from 2:1 layer clay materials which are obtained by the chemical modification of 2:1 layer clay minerals by reaction with a salt having the formula MX wherein M is ammonium ion or alkali metal cation and X is a halide. The new materials have the following characteristics: (a) an amorphous x-ray diffraction signal manifest as a broad hump using x-ray powder diffraction between 22.degree. and 32.degree. 2.theta. using CuK.alpha. radiation; and (b) the presence of primarily tetrahedrally coordinated aluminum.

Process for forming alumino-silicate derivatives

A process for the preparation of an amorphous alumino-silicate derivative which involves reacting a solid corresponding starting material with MOH where M is alkali metal or ammonium cation. The solid corresponding starting material may be selected from montmorillonite, kaolin, natural zeolite (e.g., clinoliptolite/heulandite) as well as illite, palygorskite and saponite and additional reactant MX wherein X is halide may be utilized in conjunction with MOH. The invention also includes alumino-silicate derivatives of the general formula M.sub.p Al.sub.q Si.sub.2 O.sub.r (OH).sub.s X.sub.t.uH.sub.2 O as well as alumino-silicate derivatives of the general formula M.sub.p Al.sub.q Si.sub.2 O.sub.r (OH).sub.s.uH.sub.2 O.

Kaolin derivatives

Amorphous derivatives of kaolin group minerals characterized by high specific surfaces and/or high cation exchange capacities and a .sup.27 AL MAS NMR spectrum having a dominant peak at about 55 ppm relative to Al(H.sub.2 O).sub.6.sup.3+. Such derivatives are prepared by reacting a kaolin group mineral with a reagent, such as, an alkali metal halide or an ammonium halide which converts the majority of the octahedrally coordinated aluminum in the kaolin group mineral to tetrahedrally coordinated aluminum. Such derivatives show high selectivity in its cation exchange towards the metals: Pb.sup.2+, Cu.sup.2+, Cd.sup.2+, Ni.sup.2+, CO.sup.2+, Cr.sup.3+, Sr.sup.2-, Zn.sup.2+, Nd.sup.3+ and UO.sub.2.sup.+.

Modified kaolins

A process for the preparation of a modified kaolin from a kaolin group mineral which includes expansion and contraction of layers of the kaolin group mineral. The layers comprising one Si-tetrahedral sheet and one Al-octahedral sheet. The expansion and contraction may be initiated by initial intercalation of a reagent which can penetrate kaolin layers to reach an interlayer region there between to form an intercalate. Subsequently, the intercalation may be followed by de-intercalation which involves the removal of the reagent. By the above process, there is provided crystalline modified kaolins having the following properties: (i) an increased interlayer space compared to corresponding kaolin group minerals; (ii) an increased susceptibility to intercalation by cations, anions or salts compared to corresponding kaolin group minerals; and (iii) an increased exfoliated morphology compared to corresponding kaolin group minerals.

Fast scanning electron microscope (FSEM)

High magnification and large depth of field with a temporal resolution of less than 100 microseconds are possible using the present invention which combines a linear electron beam produced by a tungsten filament from an SX-40A Scanning Electron Microscope (SEM), a magnetic deflection coil with lower inductance resulting from reducing the number of turns of the saddle-coil wires, while increasing the diameter of the wires, a fast scintillator, photomultiplier tube, photomultiplier tube base, and signal amplifiers and a high speed data acquisition system which allows for a scan rate of 381 frames per second and 256.times.128 pixel density in the SEM image at a data acquisition rate of 25 MHz. The data acquisition and scan position are fully coordinated. A digitizer and a digital waveform generator which generates the sweep signals to the scan coils run off the same clock to acquire the signal in real-time.

Evolution of the concept of compulsory licensing: A critical analysis of key developments before and after TRIPS

Patents provide monopoly rights to patent holders. There are safeguards in patent regime to ensure that exclusive right of the patent holder is not misused. Compulsory licensing is one of the safeguards provided under TRIPS using which patent granting state may allow a third party to exploit the invention without patent holder’s consent upon terms and conditions decided by the government. This concept existed since 1623 and was not introduced by TRIPS for the first time. But this mechanism has undergone significant changes especially in post-TRIPS era. History of evolution of compulsory licensing is one of the least explored areas of intellectual property law. This paper undertakes an analysis of different phases in the evolution of the compulsory licensing mechanism and sheds light on reasons behind developments especially after TRIPS.

Geopiracy: Patent law, climate change, and geoengineering

Patent law is a regime of intellectual property, which provides exclusive rights regarding scientific inventions, which are novel, inventive, and useful. There has been much debate over the limits of patentable subject matter relating to emerging technologies. The Supreme Court of the US has sought to rein in the expansive interpretation of patentability by lower courts in a series of cases dealing with medical information (Prometheus), finance (Bilski), and gene patents (Myriad). This has led to a reinvigoration of the debate over the boundaries of patentable subject matter. There has been controversy about the rise in patenting of geoengineering - particularly by firms such as Intellectual Ventures.

Access to medicine and the dangers of patent linkage : lessons from Bayer Corp v. Union of India

In February 2010, the Delhi High Court delivered its decision in Bayer Corp v Union of India in which Bayer had appealed against an August 2009 decision of the same court. Both decisions prevented Bayer from introducing the concept of patent linkage into India’s drug regulatory regime. Bayer appealed to the Indian Supreme Court, the highest court in India, which agreed on 2 March 2010 to hear the appeal. Given that India is regarded as a global pharmaceutical manufacturer of generic medications, how its judiciary and government perceive their international obligations has a significant impact on the global access to medicines regime. In rejecting the application of patent linkage, the case provides an opportunity for India to further acknowledge its international human rights obligations.

Patent-busting: The public patent foundation, gene patents and the Seed Wars

This chapter considers the Public Patent Foundation as a novel institution in the patent framework. It contends that such a model can play a productive role in challenging the validity of high-profile patents; working as an amicus curiae in significant court cases; and also promoting patent law reform. However, there are limits to the ‘patent-busting’ of the Foundation. The not-for-profit legal services organization has only had the time and resources to challenge a number of noteworthy patents. Other jurisdictions – such as Australia – lack such public-spirited "patent-busting" entities. This chapter considers a number of key disputes involving the Public Patent Foundation. Part I examines the role of the Public Patent Foundation in the landmark dispute over Myriad Genetics’ patents in respect of breast cancer and ovarian cancer. Part II considers the role of the Public Patent Foundation in litigation between organic farmers and Monsanto. Part III examines the role of the Public Patent Foundation in larger debates about patent law reform in the United States – particularly looking at the Leahy-Smith America Invents Act 2011 (US). The conclusion contends that the patent-busting model of the Public Patent Foundation should be emulated in respect of other technological fields, and other jurisdictions – such as Australia. The initiative could also be productively applied to other forms of intellectual property – such as trade mark law, designs law, plant breeders’ rights, plant breeders’ rights, and access to genetic resources.

After the gold rush: Patent law and biological inventions

In response to scientific breakthroughs in biotechnology, the development of new technologies, and the demands of a hungry capitalist marketplace, patent law has expanded to accommodate a range of biological inventions. There has been much academic and public debate as to whether gene patents have a positive impact upon research and development, health-care, and the protection of the environment. In a satire of prevailing patenting practices, the English poet and part-time casino waitress, Donna MacLean, sought a patent application - GB0000180.0 - in respect of herself. She explained that she had satisfied the usual patent criteria - in that she was novel, inventive, and useful: It has taken 30 years of hard labor for me to discover and invent myself, and now I wish to protect my invention from unauthorized exploitation, genetic or otherwise. I am new: I have led a private existence and I have not made the invention of myself public. I am not obvious (2000: 18). MacLean said she had many industrial applications. ’For example, my genes can be used in medical research to extremely profitable ends - I therefore wish to have sole control of my own genetic material' (2000: 18). She observed in an interview: ’There's a kind of unpleasant, grasping, greedy atmosphere at the moment around the mapping of the human genome ... I wanted to see if a human being could protect their own genes in law' (Meek, 2000). This special issue of Law in Context charts a new era in the long-standing debate over biological inventions. In the wake of the expansion of patentable subject matter, there has been great strain placed upon patent criteria - such as ’novelty', ’inventive step', and ’utility'. Furthermore, there has been a new focus upon legal doctrines which facilitate access to patented inventions - like the defence of experimental use, the ’Bolar' exception, patent pooling, and compulsory licensing. There has been a concerted effort to renew patent law with an infusion of ethical principles dealing with informed consent and benefit sharing. There has also been a backlash against the commercialisation of biological inventions, and a call by some activists for the abolition of patents on genetic inventions. This collection considers a wide range of biological inventions - ranging from micro-organisms, plants and flowers and transgenic animals to genes, express sequence tags, and research tools, as well as genetic diagnostic tests and pharmaceutical drugs. It is thus an important corrective to much policy work, which has been limited in its purview to merely gene patents and biomedical research. This collection compares and contrasts the various approaches of a number of jurisdictions to the legal problems in respect of biological inventions. In particular, it looks at the complexities of the 1998 European Union Directive on the Legal Protection of Biotechnological Inventions, as well as decisions of member states, such as the Netherlands, and peripheral states, like Iceland. The edition considers US jurisprudence on patent law and policy, as well as recent developments in Canada. It also focuses upon recent developments in Australia - especially in the wake of parallel policy inquiries into gene patents and access to genetic resources.