Intellectual Property LEGAL NEWS - March 22, 2013 • Volume 1, Number 2

In This Issue:

- AMERICA INVENTS ACT FINAL IMPLEMENTATION: FROM FIRST-TO-INVENT TO FIRST-TO-FILE:

The America Invents Act (“AIA”), which went into effect September 16, 2011, introduces some of the most significant changes to the U.S. patent system since the first U.S. patent was issued in 1790. Under the AIA’s rolling implementation, we’ve already seen new law go into effect repealing the “Best Mode” defense, changing the nature of “false patent marking” claims, incentivizing “virtual patent marking,” and changing the way patent grants are challenged in the U.S. Patent and Trademark Office (“USPTO”). Now, as of last week, the last of these changes have been implemented and the U.S. has officially gone from a “first to invent” to a “first to file” jurisdiction...

- ARE HUMAN GENES PATENTABLE?

The Supreme Court has long held that laws of nature, natural phenomenon, and abstract ideas are not patent eligible under 35 U.S.C. § 101. See, e.g., Diamond v. Diehr, 450 U.S. 175 (1981); Diamond v. Chakrabarty, 447 U.S. 303 (1980). Since 2010, the Supreme Court has twice more considered this issue, both times reversing the Federal Circuit. Mayo Collaborative Serv. v. Prometheus, Inc. 132 S. Ct. 1289 (2012) (a method of optimizing the efficacy of a drug is an unpatentable law of nature); Bilski v. Kappos 130 S. Ct. 3218 (2010) (a method of hedging risk in trading commodities constitutes an unpatentable abstract idea). On April 15th, the Supreme Court will hear yet another case concerning patent eligible subject matter, this time on an issue of great importance to the biotechnology industry; namely, the patentability of human genes. Ass’n for Molecular Pathology v. Myriad Genetics, Inc., U.S. No 12-398, (Nov. 30, 2012)....

- APPLE RETAIL STORES RECEIVE TRADEMARK PROTECTION:

In Walter Issacson’s 2011 biography of Steve Jobs, Issacson recounts how in 1999, after returning to Apple, Steve Jobs began to interview executives to develop a string of new Apple retail stores. At the time, Gateway Computers was on the verge of bankruptcy after opening its suburban stores, and Dell was succeeding by selling direct to customers without stores. Nonetheless, Jobs correctly predicted that if Window users, in particular, were passing by and found the Apple store inviting enough, Apple would win...

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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