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U.S. Supreme Court Hears Oral Arguments in Myriad Gene Patent Case

On April 15, 2013, the U.S. Supreme Court will hear oral arguments in one of the most controversial and publicized biotech patent cases, the “ACLU/Myriad” gene patenting case (formally, The Association For Molecular Pathology, et al. v. USPTO et al.). While it is nearly impossible to predict the outcome of a Supreme Court case from the oral arguments, the questions the Justices ask (or don’t ask) and the parties’ responses may at least provide an indication of the issues that the Court will focus on when it renders its decision.

Are Human Genes Patentable?

The Supreme Court granted certiorari to address the fundamental, threshold question of the patent-eligibility of human g [...]

German Federal Supreme Court rules on the patentability of neural precursor cells

by Miriam Büttner

On 27 November 2012 the German Federal Supreme Court (BGH) decided on the ethical problematical question, if neural precursor cells which origin from human stem cells are patentable or not (case no. X ZR 58/07).

Background of the decision:

Subject of this BGH decision is the validity of German patent no. 197 56 864, which Oliver Brüstle, a German scientist, applied for in 1997 and which was granted by the German Patent and Trademark Office (DPMA) in April 1999. This patent concerns the protection of neural precursor cells, a procedure to cultivate these cells and the usage of these cells in therapies for neural defects of humans and animals. According to the explanation i [...]

T905/09, European Patent Office (Appeals Court), 18 September 2012

An invention entailing a talking doll with the ability to send e-mails was held to be unpatentable. The Board of Appeal rejected applicant’s argument that the invention was in the technical field of stuffed animal toys or dolls. There was no contribution in that field because the claim features did not change the toy’s design at all. The alleged solution was held not to be inventive because the technical aspects of the claimed solution were commonly known from prior art.

Click here for the full text of this case.

A summary of this case will be posted on http://www.KluwerIPCases.com

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U.S. Supreme Court To Decide If Human Genes Can Be Patented

On November 30, 2012, the U.S. Supreme Court granted certiorari in the “ACLU/Myriad” gene patenting case (Association for Molecular Pathology v. Genetics, Inc.), taking on the debate over the patent-eligibility of human genes. The Court will review the August 16, 2012 Federal Circuit decision that held for the second time that Myriad’s claims directed to isolated DNA sequences satisfy 35 USC § 101.

The Court’s order granting certiorari is limited to the following question:

Are human genes patentable?

However, in order to assess Myriad’s patents, it will have to decide whether Myriad’s claims, which are directed to “isolated DNA” that encompass genomic DNA const [...]

Plant protection in Europe: a seamless fit no more?

EPO practice on patenting plants knows two exclusions that are defined in Art. 53(b) EPC: the exclusion of “plant varieties”, and the exclusion of “essentially biological processes for the production of plants”.

The recent referral G2/12 may change this practice and may lead to the exclusion of plants depending on how they were made. The referring Board questions the patentability of product claims for plants obtained by classical breeding methods, even if the claims are not directed to plant varieties.

The exclusions of Art. 53(b) EPC have been subject to Enlarged Board of Appeal decisions G1/98 and G1/08, respectively. The extent of plant variety exclusion was discussed in G1/98. [...]

IPO decision ‘stems’ from Brüstle

The UK IPO has applied the decision of the CJEU in Brüstle on stem cells in a recent case that is likely to lead to more judicial comment on the patentability of stem cell inventions. In International Stem Cell Corporation*, the applicant appealed the Examiner’s rejection of two patents, relating to methods of producing human stem cells and corneal tissues derived from such stems cells, where those stem cells are produced using parthenogenesis (i.e. the development of an embryo without fertilisation) to activate a human oocyte.

The Hearing Officer (who hears internal appeals at the UK IPO) therefore had to apply the CJEU’s decision in Brüstle, where the CJEU had sought to define “hum [...]

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