Chronicling the high cost of our legal system
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It started with an insult-filled letter to a patent examiner that quickly made the rounds in the legal blogosphere (“Are you drunk? No, seriously … are you drinking scotch and whiskey with a side of crack cocaine while you ‘examine’ patent applications?”) In Round Two, the incensed attorney goes after patent-law blogger Dennis Crouch of Patently-O, who brought the letter to the web’s attention. [Above the Law]
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A unanimous Supreme Court has struck down a patent over diagnostic methods in medicine, the latest in a series of controversies over the bounds of patentable subject matter. [Mayo v. Prometheus Labs; Marcia Coyle/NLJ, SCOTUSBlog, Timothy Lee/ArsTechnica] As I noted last fall, my Cato Institute colleagues Ilya Shapiro, Jim Harper and Timothy Lee filed an amicus brief on behalf of the side that prevailed yesterday, arguing against the spread of “a dangerous exception to traditional patent law… the Court should reject medical-diagnostic patents as impermissibly restricting the freedom of thought.”
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Bad enough to be an established software firm and get hit with lawsuits from competitors or patent trolls. But even companies at the early startup stage now face legal attack, and patent law (unlike copyright) assigns liability even if there has been no knowing act of imitation or appropriation, which complicates the task of defense. “Merely asking a patent lawyer to evaluate the case and advise a company on whether it was guilty of infringement could cost a firm tens of thousands of dollars. And a full-blown patent lawsuit could easily carry a price tag in the millions of dollars, with no guarantee of recovering attorney’s fees even if the defendant prevailed.” In practice, some firms like Microsoft whose portfolios amount to “patent thickets” can establish themselves as gatekeepers to the industry. [Timothy Lee, Slate]
And: “New Patent Regs May Inspire More Litigation, Not Less” [Daniel Fisher, Forbes]
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The new patent reform bill may end, or at least restrict, the odd practice of asserting patents on ways to reduce tax liability. [Legal Ethics Forum, earlier here, here, etc.]
My Cato Institute colleagues have filed an amicus brief arguing against the spread of “a dangerous exception to traditional patent law… the Court should reject medical-diagnostic patents as impermissibly restricting the freedom of thought.” [Mayo v. Prometheus Labs; Ilya Shapiro, Jim Harper and Timothy Lee, Cato]
Congress might provide a do-over for a drug firm that inadvertently missed filing for a patent extension by a day or two, and in so doing spare the prominent law firm WilmerHale a possible malpractice payout [Andrew Pollack, New York Times]
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The nutritional paste seems to be a really useful invention in getting international food assistance to the poor. Does that mean it’s okay to break its patent? [Alanna Sheikh, AidWatch]
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In June we reported on a boomlet in freelance lawsuits accusing companies of marking their products with outdated patent numbers or with other violations of a federal statute that prohibits the use of false or misleading patent marks on products. On December 28 the Federal Circuit issued a decision that may greatly stimulate the activities of what are already being called “marking trolls”. It holds that courts have discretion to impose the law’s $500 penalty per mislabeled item sold, which means that total penalties might rise to gigantic levels; lawyers who bring the cases then split the proceeds with the federal government in qui tam fashion. Coverage: George Best and Jeffrey Simmons/Foley & Lardner, Robert Matthews, Jr., Patently-O, Rebecca Tushnet and more, Patent Prospector.
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“No, you shouldn’t be able to patent a ‘method of speed dating.’” [Gordon Crovitz, WSJ]
Encouragingly, the Justices appear to be skeptical. [Steele, Legal Ethics Forum; Mullin, IP Law and Business]
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More details from Chris Albrecht at NewTeeVee and Jesse Walker at Reason “Hit and Run”.
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Individual liberty, free markets, and peace: the world's premier libertarian think tank. Publishes Cato at Liberty, where I blog on contemporary policy issues.
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