September 13-16, 2020

A Bridge of Tears for Life Sciences

A Bridge of Tears for Life Sciences

RegisterWe are gazing into at a future where more groundbreaking and breathtaking medical innovations cannot be predictably and reliably protected in the United States. Just recently, in early January 2020, the United States Supreme Court denied certiorari in five more petitions relating to patent eligibility challenges. Based on our count, this brings the total number of patent eligibility petitions denied by the Supreme Court to at least 48 since the Court issued its controversial, if not catastrophic, decision in Alice Corporation vs. CLS Bank, 134 S.Ct. 2347 (2014).

Among the cases recently denied certiorari by the Supreme Court was Athena Diagnostics, a case where all twelve active judges of the United States Court of Appeals for the Federal Circuit agreed the medical diagnostic should be patent eligible. In denying rehearing en banc, a majority of the Federal Circuit felt compelled by Supreme Court precedent to hold otherwise.

We now definitively know that medical diagnostics are not patentable in America, at least until such time as Congress chooses otherwise. These are dark days for patents on commercially relevant technology of consequence in America.

Not surprisingly, this uncertainty leads to disincentives to the development of new diagnostic tests, which is not in the public interest. Meanwhile, Congress and Presidential candidates are posturing with respect to drug prices and rather than try to tackle the real problems driving drug prices, patents become the easy and popular enemy. This session will explore questions such as where we are now and where we are heading?

Reference Articles:

  1. Athena Diagnostics Seeks Supreme Court Review (PatentDocs.org)
  2. An Activist Supreme Court and its Unconstitutional Approach to Patent Eligibility (IPWatchdog.com)
  3. Knowles/Addy Brief Dissects Five Critical Inconsistencies in Eligibility Law (IPWatchdog.com)
  4. Supreme Court on Eligibility: Nothing to See Here, Move Along (PatentDocs.org)
  5. The Supreme Court is More Interested in Being Right Than Shedding Light on 101 (IPWatchdog.com)

About MCLE Credit

MCLE has been approved in Texas (1 hrs) and Missouri (1.2 hrs). Application for MCLE pending in Virginia, Oklahoma and Arkansas.

States including California, FloridaIllinois, HawaiiNew JerseyNew York, North Dakota and Wisconsin accept credits when a course has been approved by another MCLE jurisdiction, as has occurred here.

States such as Arizona and New Hampshire do not approve courses and expect lawyers to independently verify courses meet MCLE requirements.

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