Last week, Advanced Cell Technology, Inc. (ACT) was granted a patent (U.S. Patent No. 7,893,315) for its “single-blastomere” technology that provides a non-destructive method for deriving human embryonic stem cells (hESC). In ACT’s technique, a single cell is biopsied from an embryo and cultured to produce a hESC line. The process does not destroy the embryo or impair the embryo’s subsequent development, hence the technique has been touted as “embryo-safe.” This technique is similar to pre-implantation genetic diagnosis (PGD) that has been used in in-vitro fertilization (IVF) for many years.
This past week, the Senate conducted hearings on the Combating Online Infringement and Counterfeits Act which, if passed, would provide the Attorney General with broad authority to shut down U.S. and foreign internet sites “dedicated to infringing activities.” The Act was introduced in September 2010 and unanimously approved by the Senate Judiciary Committee late last year; nevertheless, it has yet to receive a full vote on the Senate floor. If passed, the Act would require the U.S. Attorney General to independently investigate potentially infringing websites and submit these findings to a judicial board. The board would then determine whether the site is “dedicated to infringing activities"; if so, the government would (1) suspend operation and lock the domain name; (2) ban credit card companies and financial institutions from processing any domestic transactions related to the site; and (3) prohibit online advertisers from working with or sending traffic to the site. And, in what is perhaps the best news for copyright owners: the government would do all of this free-of-charge. Not surprisingly, then, the Act’s most ardent proponents include the RIAA, MPAA, and the Screen Actors Guild.
Late last year, the Court of Appeals for the Federal Circuit ruled that certain biotechnology method claims as applied to humans are patentable subject matter under 35 U.S.C. §101. In Prometheus Labs. Inc. v. Mayo Collab. Serv., Docket 2008-1403 (Fed. Cir., December 17, 2010), on remand from the United States Supreme Court with instructions to revisit their previous ruling in view of the determination in Bilski, the Federal Circuit affirmed their initial decision that the patent claims at issue are valid and patentable.
The U.S. Supreme Court recently granted certiorari to Microsoft in a case involving patent invalidity. Microsoft is challenging a Federal Circuit Court of Appeals finding of validity in favor of patent holder, i4i, in a case that has been long fought in the lower courts, and resulted in an award of over $200 million in damages to i4i. In its decision, the Federal Circuit relied on its long standing precedent that patent invalidity must be proven by "clear and convincing evidence."
The proliferation of false patent marking claims asserted under 35 U.S.C. Section 292 continues. Common examples of accused conduct include the placing of incorrect patent numbers or expired patent numbers on everyday products, such as plastic cup lids, disposable razors, etc. In such actions, the plaintiff essentially sues the defendant on behalf of the federal government, petitioning for a fine of up to $500 per falsely-marked article. As a ‘reward,’ the plaintiff is generally entitled to receive half of the penalty. This type of legal action, generally referred to as a qui tam claim, is a relatively uncommon relic of past jurisprudence. However, the number of actions for false patent marking cases has continued to rise since the well-known 2009 Solo Cup case (which involved expired patents marked on plastic cup lids). Indeed, some patent blogs are now tracking this trend in qui tam false patent marking cases.
The Key West Tourism Development Association ("TDA") recently filed a lawsuit alleging intellectual property violations stemming from alleged unauthorized use of the mark "FANTASY FEST" by Zazzle, Inc., a California business entity. Zazzle is the owner of the web site, zazzle.com, which according to the complaint, offers "blank" products such as t-shirts and coffee mugs that can be customized by consumers. TDA argues that, in so doing, Zazzle facilitates and benefits from the creation of counterfeit items. In its Complaint, TDA takes issue with Zazzle's use of meta tags, and the offering of products which feature the marks "FANTASY FEST," and "HABITAT FOR INSANITY," this year's festival theme.