Miami heat: Patent law, informed consent and benefit-sharing

This article considers whether the granting of patents in respect of biomedical genetic research should be conditional upon the informed consent of research participants. It focuses upon several case studies. In Moore v the Regents of the University Of California, a patient sued his physician for breach of fiduciary duty and lack of informed consent, because the doctor had obtained a patent on the patient's cell line, without the patient's authorisation. In Greenberg v Miami Children's Hospital, the research participants, the Greenbergs, the National Tay Sachs and Allied Diseases Association, and Dor Yeshorim brought a legal action against the geneticist Reubon Matalon and the Miami Children's Hospital over a patent obtained on a gene related to the Canavan disease and accompany genetic diagnostic test. PXE International entered into a joint venture with Charles Boyd and the University of Hawaii, and obtained a patent together for ‘methods for diagnosing Pseudoxanthoma elasticum’. In light of such case studies, it is contended that there is a need to reform patent law, so as to recognise the bioethical principles of informed consent and benefit-sharing. The 2005 UNESCO Declaration on Bioethics and Human Rights provides a model for future case law and policy-making.

How to be alone: New Dimensions in Privacy Law

The book, New Dimensions in Privacy Law, has an arresting cover — a pack of paparazzi take photographs, with their flash-bulbs popping and exploding,like starbursts in the sky. The collection explores the valiant efforts of courts and parliaments to defend the privacy of individuals against such unwanted intrusions.

A right of resale? Indigenous art under the hammer

This week, Sotheby's sold the late Clifford Possum Tjapaltjarri's painting, Warlugulong. The auction-house's spokesman, Tim Klingender, was enthusiastic about the high price commanded by the art work: "The painting was a really great painting and it deserved to make a really fantastic price, and it made that price."

Don't feed the 'patent trolls': [An overhaul of the patent system is necessary to keep up with advances in technology.]

The government is sitting on its hands when an overhaul of the patent system is necessary to keep up with advances in technology in the 21st century.

Harry Potter and the lexicon of doom

In a three day trial in April 2008, the United States District Court for the Southern District of New York considered whether the Harry Potter Lexicon infringed the intellectual property rights of J.K. Rowling and Warner Brothers. The case has attracted great media attention. As John Crace, a reporter for The Guardian, observed: “On one side: global-celebrity author J.K. Rowling. On the other: an amateur fan site devoted to the world's favourite boy wizard. At stake: the soul of Harry Potter.” J.K. Rowling is the author of the seven book Harry Potter series, which tell the story of a young wizard, Harry Potter, and his battles with Voldemort, the Lord of Darkness. As the court papers noted, “The Harry Potter Books are a modern day publishing phenomenon and success story.” Warner Brothers sought and obtained the film rights to the series. The entertainment company has thus far produced five films; a sixth is due in November 2008; and the final instalment is planned. The Harry Potter Lexicon is a reference guide created by Steven Vander Ark, a former grade school teacher. He has organised a large volume of material on the Harry Potter books and the Harry Potter films on a website in an alphabetical listing, from “A-Z”. The founder of RDR Books, Roger Rapoport, approached Ark to publish the Harry Potter Lexicon in a book form. Ark agreed to this request, and provided the publisher with a condensed version of the web-site. After RDR Books announced its intention to publish the reference book, J.K. Rowling and Warner Brothers brought a legal action in the United States District Court for the Southern District of New York, alleging that the publishers of the Harry Potter Lexicon were in breach of various intellectual property rights. A spokesperson for Warner Brothers and J.K. Rowling observed: "A fan’s affectionate enthusiasm should not obscure acts of plagiarism. The publishers knew what they were doing. The problem remains that the Lexicon takes an enormous amount of Ms. Rowling’s work and adds virtually no original commentary of its own. As we’ve said in court, it takes too much and adds too little. Authors have a duty to prevent the exploitation of their works by people who contribute nothing original, creative or interpretive." The litigation involves the intersection of copyright law, trade mark law, and consumer protection law. It has a wider significance because it deals with the protection of authorial rights; the use of literary indexes, supplements and reference guides; and the clash between character merchandising and fan fiction.

Patent trolls and patent-busters

In recent times, there have been concerns that the patent system been abused by opportunistic companies known by the phrase "patent trolls". It has been alleged that such entities have stunted innovation and spurred unnecessary patent litigation...

Vanquishing the'Patent Trolls'

Patent law provides exclusive rights to exploit scientific inventions, which are novel, inventive, and useful. The regime is intended to promote innovation, investment in research and development, and access to scientific information. In recent times, there have been concerns that the patent system has been abused by opportunistic companies known by the phrase “patent trolls”. It has been alleged that such entities have stunted innovation and spurred unnecessary patent litigation. Adam Jaffe and Josh Lerner discuss such pathologies of patent law in their book, Innovation and Its Discontents: How our Broken Patent System is Endangering Innovation and Progress, and What To Do About It. James Bessen and Michael Meurer have addressed such concerns in their recent text, Patent Failure: How Judges, Bureaucrats, and Lawyers Put Innovators at Risk. There have been particular fears about the rise of “patent trolls” in the field of information technology. Peter Dekin, an assistant general counsel at Intel, used the phrase “patent troll” to describe firms, which acquired patents only to extract settlements from companies on dubious infringement claims.

Media futures: A review essay on'The Future of Reputation','TV Futures', and'The Future of the Internet and How to Stop It'

In his 1987 book, The Media Lab: Inventing the Future at MIT, Stewart Brand provides an insight into the visions of the future of the media in the 1970s and 1980s. 1 He notes that Nicolas Negroponte made a compelling case for the foundation of a media laboratory at MIT with diagrams detailing the convergence of three sectors of the media—the broadcast and motion picture industry; the print and publishing industry; and the computer industry. Stewart Brand commented: ‘If Negroponte was right and communications technologies really are converging, you would look for signs that technological homogenisation was dissolving old boundaries out of existence, and you would expect an explosion of new media where those boundaries used to be’. Two decades later, technology developers, media analysts and lawyers have become excited about the latest phase of media convergence. In 2006, the faddish Time Magazine heralded the arrival of various Web 2.0 social networking services: You can learn more about how Americans live just by looking at the backgrounds of YouTube videos—those rumpled bedrooms and toy‐strewn basement rec rooms—than you could from 1,000 hours of network television. And we didn’t just watch, we also worked. Like crazy. We made Facebook profiles and Second Life avatars and reviewed books at Amazon and recorded podcasts. We blogged about our candidates losing and wrote songs about getting dumped. We camcordered bombing runs and built open‐source software. America loves its solitary geniuses—its Einsteins, its Edisons, its Jobses—but those lonely dreamers may have to learn to play with others. Car companies are running open design contests. Reuters is carrying blog postings alongside its regular news feed. Microsoft is working overtime to fend off user‐created Linux. We’re looking at an explosion of productivity and innovation, and it’s just getting started, as millions of minds that would otherwise have drowned in obscurity get backhauled into the global intellectual economy. The magazine announced that Time’s Person of the Year was ‘You’, the everyman and everywoman consumer ‘for seizing the reins of the global media, for founding and framing the new digital democracy, for working for nothing and beating the pros at their own game’. This review essay considers three recent books, which have explored the legal dimensions of new media. In contrast to the unbridled exuberance of Time Magazine, this series of legal works displays an anxious trepidation about the legal ramifications associated with the rise of social networking services. In his tour de force, The Future of Reputation: Gossip, Rumor, and Privacy on the Internet, Daniel Solove considers the implications of social networking services, such as Facebook and YouTube, for the legal protection of reputation under privacy law and defamation law. Andrew Kenyon’s edited collection, TV Futures: Digital Television Policy in Australia, explores the intersection between media law and copyright law in the regulation of digital television and Internet videos. In The Future of the Internet and How to Stop It, Jonathan Zittrain explores the impact of ‘generative’ technologies and ‘tethered applications’—considering everything from the Apple Mac and the iPhone to the One Laptop per Child programme.

A Submission to the Senate Community Affairs Committee Inquiry into gene patents

Inquiry into Gene Patents Submissions Received by the Committee during the 42nd Parliament

Wikipedia, collective authorship, and the politics of knowledge

This chapter considers the legal ramifications of Wikipedia, and other online media, such as the Encyclopedia of Life. Nathaniel Tkacz (2007) has observed: 'Wikipedia is an ideal entry-point from which to approach the shifting character of knowledge in contemporary society.' He observes: 'Scholarship on Wikipedia from computer science, history, philosophy, pedagogy and media studies has moved beyond speculation regarding its considerable potential, to the task of interpreting - and potentially intervening in - the significance of Wikipedia's impact' (Tkacz 2007). After an introduction, Part II considers the evolution and development of Wikipedia, and the legal troubles that have attended it. It also considers the establishment of rival online encyclopedia - such as Citizendium set up by Larry Sanger, the co-founder of Wikipedia; and Knol, the mysterious new project of Google. Part III explores the use of mass, collaborative authorship in the field of science. In particular, it looks at the development of the Encyclopedia of Life, which seeks to document the world's biodiversity. This chapter expresses concern that Wiki-based software had to develop in a largely hostile and inimical legal environment. It contends that copyright law and related fields of intellectual property need to be reformed in order better to accommodate users of copyright material (Rimmer 2007). This chapter makes a number of recommendations. First, there is a need to acknowledge and recognize forms of mass, collaborative production and consumption - not just individual authorship. Second, the view of a copyright 'work' and other subject matter as a complete and closed piece of cultural production also should be reconceptualised. Third, the defense of fair use should be expanded to accommodate a wide range of amateur, peer-to-peer production activities - not only in the United States, but in other jurisdictions as well. Fourth, the safe harbor protections accorded to Internet intermediaries, such as Wikipedia, should be strengthened. Fifth, there should be a defense in respect of the use of 'orphan works' - especially in cases of large-scale digitization. Sixth, the innovations of open source licensing should be expressly incorporated and entrenched within the formal framework of copyright laws. Finally, courts should craft judicial remedies to take into account concerns about political censorship and freedom of speech.

Owning omega-3: Monsanto and the invention of meat

In August of 2010, Anna Salleh of the Science Unit of the Australian Broadcasting Corporation broke a story about Monsanto seeking to patent the enhancement of meat, including omega-3 fatty acids: ‘Enhanced port is sparking debate over the ethics of placing patents on food. Patent applications covering the enhancement of meat, including pork with omega-3 fatty acids, are stimulating debate over the ethics and legalities of claiming intellectual property over food. Monsanto has filed patents that cover the feeding of animals soybeans, which have been genetically modified by the company to contain stearidonic acid (SDA), a plant-derived omega-3 fatty acid... Omega-3s have been linked to improved cardiovascular health and there are many companies engineering them into foodstuffs. But the new patent applications have touched a raw nerve among those who see them as an attempt by the company to exert control over the food chain.’ This article providers a critical evaluation of the controversy of Monsanto’s patent applications, and the larger issues over patenting food. It first considers the patent portfolio of Monsanto; the nature of the patent claims; and the examination of the claims by patent examiners. Second, it examines the withdrawal and revision of the patent claims by Monsanto in the wake of criticism by patent authorities and the public disquiet over the controversial application. Third, this article considers the larger policy issues raised by Monsanto’s patent applications – including the patenting of plants, animals, and foodstuffs. There is also a consideration of the impact of patents upon the administration of health-care, competition, and research.

Patenting free energy: The BlackLight litigation and the hydrogen economy

Legal Context In the wake of the Copenhagen Accord 2009 and the Cancun Agreements 2010, a number of patent offices have introduced fast-track mechanisms to encourage patent applications in relation to clean technologies - such as those pertaining to hydrogen. However, patent offices will be under increasing pressure to ensure that the granted patents satisfy the requisite patent thresholds, as well as to identify and reject cases of fraud, hoaxes, scams, and swindles. Key Points This article examines the BlackLight litigation in the United States, the United Kingdom, and the European Patent Office, and considers how patent offices and courts deal with patent applications in respect of clean energy and perpetual motion machines. Practical Significance The capacity of patent offices to grant sound and reliable patents is critical to the credibility of the patent system, particularly in the context of the current focus upon promoting clean technologies.