INFLUENTIAL COURT CASES
Association for Molecular Pathology et al v US Patent and Trademark Offi ce et al
In a case widely-tipped to be heard by the US Supreme Court, the US Court of Appeals for the Federal Circuit held that DNA inventions could be patented.
T e American Civil Liberties Union wanted pharmaceutical company Myriad Genetics’ patents for the BRCA1 and BRCA2 breast cancer genes to be invalidated because, it argued, they were incorrectly granted in terms of composition and method.
T e Federal Circuit’s July decision reversed a lower court’s March 2010 declaratory judgement that invalidated the Myriad patents because of their composition claims. But it did uphold all but one of the lower court’s method claim fi ndings.
Paul Sutton, a founding partner of Sutton Magidoff LLP, says: “T e Federal Circuit gave to Myriad Genetics with one hand, and took with the other. Its 2-to-1 decision on the issue of gene patenting, reversed the district court non- patentability fi nding that sent tremors through the biotechnology industry, confi rming that genes can in fact be patented.”
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For its fi nal bi-monthly issue of 2011, WIPR takes a look what IP practitioners and commentators have said are some of the most infl uential court cases to have been decided over the last 12 months
’Oréal SA et al v eBay International AG et al
France-based cosmetics and perfume manufacturer L’Oréal complained to a UK court that online auction site eBay Europe was jointly liable for the trademark infringement committed by six of its users.
In July, the CJEU ruled that online auction sites must not play an “active role” in the trademark infringement and referred the case back to the UK court for fi nal proceedings.
Stefan Abel, partner at Bardehle Pagenberg, says: “Even if there is no doubt that the business model of online auctions itself is accepted, it can be expected that trademark owners will continue litigation with sites like eBay in order to force them to put an eff ective prevention mechanism in place – which will most likely be more than today’s notice-and-take-down approach.”
Bayer Corporation v Union of India
Bayer Corporation wanted to prevent the Drug Controller General of India (DCGI) from granting Cipla Ltd market authorisation for a generic version of Nexavar. It argued that a combined reading of the patent act and the drugs and cosmetics act shows an inbuilt provision for patent linkage.
www.worldipreview.com World Intellectual Property Review November/December 2011 27
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