NEWS DOJ says no to gene patents Lime light goes out
LimeWire, a file-sharing service found responsible for inducing the users of its soſtware to commit copyright infringement, has been shut down.
Judge Kimba Wood, presiding in the US District Court for the Southern District of New York, issued a permanent injunction against LimeWire on October 26.
Te Recording Industry Association of America (RIAA), representing the major record companies in the US, obtained a summary judgment against LimeWire in May. It held the file-sharing service secondarily liable for the copyright infringement committed by users of its soſtware.
Te injunction was issued against LimeWire because its file-sharing soſtware allows for “infringement on a massive scale”.
Te US Department of Justice (DOJ) has surprised many by declaring that unaltered genetic material should not be patentable under 35 USC § 101.
Te amicus brief was filed in the US Court of Appeals for the Federal Circuit on October 29 as the United States officially lodged its interest in Te Association For Molecular Pathology and et al v. US Patent and Trademark Office and Myriad Genetics.
Amicus briefs were also filed by the Biotechnology Industry Organization (BIO) and the Association of University Technology Managers.
According to the DOJ brief, methods of “identifying, isolating, and using” DNA molecules may be patented, because “human intervention” produces “new and useful” alterations of these molecules.
But it added: “Genomic DNA itself, however, is a product of nature that is ineligible for patent protection, whether or not claimed in ‘isolated’ form.”
Judge Robert Sweet of the US District Court for the Southern District of New York invalidated the patents-in-suit in March on the grounds that they were not “sufficiently distinct” from natural phenomena. Tat decision is on appeal.
Myriad’s patents involve the comparison and analysis of DNA strands to identify genetic mutations that increase the risk of breast cancer,
and claim rights over the BRCA1 and BRCA2 breast cancer genes.
Daniel Ravicher, executive director of the Public Patent Foundation and a co-counsel in the case, said: “Te US brief is a substantial confirmation of our views and Judge Sweet’s decision. Te impact of the US now taking the position that isolated or purified genetic sequences are indeed not patentable is a substantial boon for society and the biotech industry.”
BIO has warned that the biotechnology industry in the US could be at risk if the lower court decision is not reversed.
Jim Greenwood, president and chief executive officer of BIO, said: “Unless reversed, the district court’s ruling will seriously harm the US biotechnology industry, which consists largely of small firms that are engaged in foundational research and are dependent on private investment to fund their work.”
Despite the United States’ position on the subject, the US Patent and Trademark Office is not altering its view on the examination of similar patents. It has granted them in the past.
A USPTO spokesperson said: “Te [agency] will maintain the status quo regarding examination practice while the issue is pending before the [US] Court of Appeals for the Federal Circuit.”
8 World Intellectual Property Review November/December 2010
Judge Wood said: “Using its best efforts, LimeWire shall use all reasonable technological means to immediately cease and desist the current
infringement...and to prevent and inhibit future infringement of the copyrighted
works...by...users of the LimeWire system and soſtware.”
Tis can be achieved by disabling the “searching, downloading, uploading, file trading and/ or file distribution functionality, and/or all functionality” of LimeWire’s soſtware.
A legal notice on LimeWire’s website confirms its compliance with the court-ordered injunction, and the website is now inaccessible.
A LimeWire spokesperson said: “While this is not our ideal path, we hope to work with the music industry in moving forward. We look forward to embracing necessary changes and working with the entire music industry in the future.”
In a statement, the RIAA said that the injunction will start to “unwind the massive piracy machine that LimeWire and [its founder Mike] Gorton used to enrich themselves”.
Te record companies are also seeking damages. LimeWire may be liable for up to $150,000 in statutory damages for each instance of copyright infringement committed by users of its soſtware.
Te RIAA said: “In January, the court will conduct a trial to determine the appropriate level of damages necessary to compensate the record companies for the billions and billions of illegal downloads that occurred through the LimeWire system.”
www.worldipreview.com
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iStockphoto.com / dra_schwartz
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