BIO and the Supreme Court
By Andrew Williams --
The 2011 BIO International Convention in Washington D.C. is less than two weeks away. If you are planning on attending, you probably already know that the amount of information and opportunities available at BIO can be daunting. Therefore, over the next week, Patent Docs will be highlighting a few sessions or other opportunities, in thematic fashion, to help you navigate your way through the convention. For example, today we present opportunities for those intested in learning more about how the Supreme Court is impacting the BIO community. Of course, Patent Docs authors and contributors will be present at BIO as part of the MBHB contingent, and Patent Docs readers are encouraged to stop by the MBHB booth (#4723 – Hall C).
For BIO attendees interested in learning more about the Supreme Court and the BIO community, there are several sessions devoted exclusively to the topic, and that will highlight the impact of recent Supreme Court decisions on specific issues of interest to the BIO community. Of course, in just the past month, the Supreme Court has issued three opinions that will impact the biotech community, so it is no surprise that there is such interest in the Court at this year's convention. These recent opinions include Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc. (2011), which established that, for federally funded inventions, the Bayh-Dole Act did not alter the principle that the rights in an invention belong to the inventor; Microsoft Corp. v. i4i Limited Partnership (2011), which reaffirmed that patent invalidity must be proved by clear and convincing evidence; and Global-Tech Appliances, Inc. v. SEB S.A. (2011), which established the standard for inducement of infringement.
The first stop for someone interested in this topic will likely be a session devoted exclusively to this topic, "Patents in the Supreme Court," which will take place from 10:00 to 11:30 AM on Tuesday, June 28. The panel for this session includes two former Solicitors General of the United States, and a former Deputy Solicitor General, who together have argued over 100 cases before the Supreme Court. This panel promises to explore why the Supreme Court is increasingly interested in patent law, and what the likely issues will be that the Supreme Court will take up next (including a prediction of the outcomes). The panel includes:
• Paul Clement of Bancroft PLLC, who was the 43rd Solicitor General of the U.S. from July 2004 through June 2008 and who has argued over 50 cases before the Supreme Court;
• Thomas G. Hungar of Gibson Dunn & Crutcher LLP, who was Deputy Solicitor General of the U.S. from 2003 until 2008 and who has argued over 24 cases before the Supreme Court, including KSR Int'l Co. v. Teleflex Inc. and Quanta Computer, Inc. v. LG Electronics, Inc.; and
• Seth P. Waxman of Wilmer Cutler Pickering Hale and Dorr LLP, who was the 41st Solicitor General of the U.S. from 1997 through January 2001, and who has argued over 56 cases before the Supreme Court, including most recently the Microsoft v. i4i case. Mr. Waxman also represents BIO as amicus curiae in Association for Molecular Pathology v. USPTO.
This panel will be moderated by former Retired Chief Judge Paul Michel of the U.S. Court of Appeals for the Federal Circuit.
Another session in the Biotech Patenting and Tech Transfer Track that promises to touch on the Supreme Court's 2010-2011 patent docket, and discuss issues that will could soon reach the Supreme Court, is "The Myriad Case and the Patentability of Isolated DNA Molecules." This session will take place from 8:30 to 9:45 AM on Tuesday, June 28, just before the previously discussed panel. In fact, this session is moderated by Mr. Waxman, and the panel consists of the legal team at WilmerHale that drafted BIO's amicus brief in the Association for Molecular Pathology v. USPTO (i.e., the Myriad Genetics) case. The panel will discuss the progress of this case through the District Court and Federal Circuit, as well as predict the future of this issue at the Supreme Court.
However, there are sessions in tracks outside the Biotech Patenting and Tech Transfer Track that nevertheless will be of particular interest to those following the impact of the Supreme Court on the BIO community. First, the Biomarkers Track will be presenting "IP issues Affecting Biomarker-Based Diagnostics" on Monday, June 27, at 3:45-5:00 pm. This session is an update of a well-attended session from 2010 regarding the challenges for securing IP protection for biomarker diagnostics. The panelists will be discussing how the Supreme Court's Bilski v. Kappos decision is affecting biomarker diagnostics, as well as other important cases before the Federal Circuit (including the Myriad Genetics case, and the Prometheus and Classen cases). In addition, the panel will provide a perspective on the same issues before the European Patent Office and other jurisdictions of interest. The panel includes: Thorlakur Jonsson, Director of Intellectual Property of deCODE genetics ehf; Simon O'Brien, Chartered Patent Attorney with D. Young & Co.; and Jan Skouv, Director IPR of Exiqon A/S. This session will be moderated by David Gass of Marshall, Gerstein & Borun, LLP.
Finally, the Food and Agriculture Track will be presenting "Environmental Review of GE Food and Agriculture Products" on Thursday, June 30, from 10:00 to 11:30 AM. This session will discuss, among other things, the Supreme Court case Monsanto v. Geertson Seed Farms, and its impact on the complexity of the regulatory landscape related to new GE products. The panel will explore the successful legal challenges to GE products, and discuss ways in which parties seeking regulatory approval can increase their chances of surviving a lawsuit. The panel includes Jay Johnson of Dorsey & Whitney LLP; Mark McCaslin, President of Forage Genetics; and Larisa Rudenko, Senior Advisor for Biotechnology at the FDA-CVM. Michael Smith, Senior Manager at ICF International will moderate.
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