• Inside Views: Not Just A Matter Of Matter: ‘The Way Forward’ For The UNCBD, NP And Half-Earth

    Prof. Joseph Henry Vogel writes: Is information something or is it about something? That is essentially the question before the Fourteenth Conference of the Parties (COP) to the 1993 United Nations Convention on Biological Diversity (CBD), which meets from 19-27 November 2018. And it is a “$64 billion question”. The answer could determine the modality for “access to genetic resources” and “the fair and equitable sharing of benefits” (ABS), which is the third objective of the CBD. If the information conveyed in life is something, then the obligation of benefits could be orders of magnitude greater than if that same information is only about something. Re-phrasing the question: Are Users of genetic resources accessing information? Or are they accessing matter, the properties about which are diffused over organisms and jurisdictions? Information-as-the-answer leads to an economic rationale for tens of billions of dollars in payments per year. Properties-as-the-answer justifies the “peanuts” currently being paid.

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  • Inside Views: Not Just A Matter Of Matter: ‘The Way Forward’ For The UNCBD, NP And Half-Earth

    Prof. Joseph Henry Vogel writes: Is information something or is it about something? That is essentially the question before the Fourteenth Conference of the Parties (COP) to the 1993 United Nations Convention on Biological Diversity (CBD), which meets from 19-27 November 2018. And it is a “$64 billion question”. The answer could determine the modality for “access to genetic resources” and “the fair and equitable sharing of benefits” (ABS), which is the third objective of the CBD. If the information conveyed in life is something, then the obligation of benefits could be orders of magnitude greater than if that same information is only about something. Re-phrasing the question: Are Users of genetic resources accessing information? Or are they accessing matter, the properties about which are diffused over organisms and jurisdictions? Information-as-the-answer leads to an economic rationale for tens of billions of dollars in payments per year. Properties-as-the-answer justifies the “peanuts” currently being paid.

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  • TWi loses appeal at CAFC

    The CAFC affirmed DNJ in the TWi/Supernus case:

    TWi Pharmaceuticals, Inc. (“TWi”) appeals from a decision
    of the United States District Court for the District
    of New Jersey holding, after bench trial, that Supernus
    Pharmaceuticals, Inc.’s (“Supernus”) U.S. Patent Nos.
    7,722,898 (“the ’898 patent”), 7,910,131 (“the ’131 patent”),
    and 8,821,930 (“the ’930 patent) (collectively, “the
    asserted patents”) are not invalid and would be infringed.
    Supernus Pharms., Inc. v. TWi Pharms., Inc., 265 F.
    Supp. 3d 490 (D.N.J. 2017). For the following reasons, we
    affirm.

    Of arguments by appellant which did not prevail:


    First, the district court did not give its decision in Actavis
    de facto preclusive effect in this case. The district
    court explicitly stated in its post-trial decision that its
    decision in Actavis has “some relevance to this action,”
    but that its “findings of fact and conclusions of law set
    forth [in this post-trial decision] are based upon the
    evidence and argument presented in this litigation.”
    Supernus, 265 F. Supp. 3d at 497 n.6. The district court
    adhered to this position throughout its analysis. TWi
    disagrees and contends that the district court improperly
    relied on its decision in Actavis in three ways, each of
    which we address below.

    (…)

    But, as noted above, the district
    court referenced Actavis only to the extent that the
    records in the two cases were the same. For these reasons,
    the district court did not err in referencing Actavis
    in its decision in this case. The Actavis decision also does
    not color our decision-making on appeal.

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  • A Mixture of Known Compounds is Unpatentable without a Transformation

    A Mixture of Known Compounds is Unpatentable without a Transformation

    Bhagat v. Iancu is a newly filed petition for writ of certiorari now pending before the United States Supreme Court. (Case No. 18-277).   Bhagat is the founder and CEO of Asha Nutrition and is seeking to patent a lipid-formulation – that contains a mixture of omega-6 and omega-3 faty acids at a ratio of 4:1 or greater.

    The USPTO refused to issue the patent finding the claims barred both by on eligibility (101) and anticipation (102) grounds.  On appeal, the Federal Circuit affirmed.   The 101 denial is most interesting.  The PTAB found that that claimed fatty-acid mixtures already occur naturally in walnut oil and olive oil.  And, although the claims require (via disclaimer) that the mixture of oils come from different sources, the Board found them to be directed to a natural phenomenon.  On appeal, the Federal Circuit agreed — finding that the original ingredients of walnut oil and olive oil are natural products and the mixtures were not shown to be a “transformation of the natural products, or that the claimed mixtures have properties not possessed by these products in nature.”  [Query – are the the oils themselves product of nature?]

    This opinion follows Funk Bros.

    Continue reading A Mixture of Known Compounds is Unpatentable without a Transformation at Patently-O.

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  • The Federal Circuit’s Hidden Agenda

    One might naturally expect that, if a rejection under § 101 appealed from the PTAB failed to address all the claim limitations and had zero supporting evidence to determine whether something was abstract or well-understood, routine and conventional, the case would be a slam-dunk at the Federal Circuit.  After all, according to Supreme Court and Federal Circuit precedent, the Federal Circuit would be “powerless to affirm the administrative action by substituting what it considers to be a more…

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