Advocacy Groups Making IP Litigation Waves
The Litigation Daily
Public interest groups, known for advocating for human rights and civil liberties, are now playing an increasingly important role in the world of intellectual property law.
This was clearly demonstrated last week when the American Civil Liberties Union, together with the Public Patent Foundation, asked the U.S. Supreme Court to invalidate patents held by Myriad Genetics Inc. on two genes associated with hereditary breast and ovarian cancers. A week earlier, the Electronic Frontier Foundation joined up with the Samuelson Law, Technology and Public Policy Clinic at Berkeley Law School, urging the U.S. Patent and Trademark Office to conduct a reexamination of a patent for a system that tracks vehicles' locations.
"There was a time when people wouldn't have associated patents with the protection of civil liberties," said Corynne McSherry, EFF's Intellectual Property Director. "But patent suits are increasingly affecting individuals who are not in a position to fight back., and we see a need to step in and protect the public interest."
The ACLU's Sept. 24 petition for certiorari in the Myriad case is actually the second time the organization has asked the Supreme Court to invalidate the patents. The lawsuit alleges that Myriad's patents, which allow the company to control testing for the genes, cover unpatentable subject-matter and restrict scientific research and patients' access to medical care. In March, in light of its decision in Mayo Collaborative Services v. Prometheus Laboratories, the Supreme Court vacated a ruling by the U.S. Court of Appeals for the Federal Circuit upholding Myriad's patents. But in August the Federal Circuit again ruled that companies can obtain patents on genes.
The genes in question in the Myriad caseBRCA1 and BRCA2can be used to detect the risk of breast and ovarian cancer and help patients and their doctors plan treatment. The patents give Myriad, a molecular diagnostic company, exclusive rights to perform tests on the two genes, which the ACLU argues allows the company to set the cost of testing and makes it impossible for women to access important information about their genes or get a second opinion about test results. The ACLU also argues that the patents prevent researchers from even looking at the genes without first getting permission from Myriad.
The ACLU, which has handled plenty of copyright suits, had never tackled patent litigation until the Myriad case came along, said ACLU attorney Chris Hansen. "Copyright is a natural place for us because it overlaps with first amendment issues," he said. "But no one expected us to participate in a patent suit, and the Federal Circuit was very uncomfortable with the fact that we saw this as a civil rights casenot as a battle between two businesses."
Hansen said many patent litigators had trouble reconciling their conception of the case as a business dispute with the ACLU's civil rights stance. Myriad's lawyers at Jones Day challenged the standing of the doctors, researchers and women the organization represented. And some critics of the case accused the ACLU of having a poor understanding of patent law. "The patent bar has been a closed universe, and it couldn't understand us because we came to it with an entirely different perspective," Hansen said.
Since it made the decision to represent plaintiffs in the Myriad case, the ACLU has participated in other patent lawsuits, filing amicus briefs in at least two other cases, Hansen said.
The Electronic Frontier Foundation has also gotten directly involved in patent matters. Last month it filed an ex parte petition urging the PTO to reexamine the legitimacy of a patent held by a patent holding company called ArrivalStar S.A. The patent in question tracks vehicles and reports their location, and ArrivalStar has sued dozens of municipalities that use public tracking systems to tell transit passengers if their bus or train is on time.
Many local governments have chosen to settle with ArrivalStar, licensing the technology to avoid costly litigation. EFF says the company is acting much like a patent troll, going after municipalities that can't afford to spend taxpayer dollars on lawsuits. "Municipalities across the country are being forced to choose whether they will fight an expensive lawsuit, pay ArrivalStar's settlement demands or abandon a public service," EFF attorney Julie Samuels said in a statement when the petition was filed. "This is not how the patent system is supposed to work."
In its reexamination petition, EFF asserts that prior art exists dating back to 1992 that should invalidate ArrivalStar patents, which are based on inventions from 1999.
The San Francisco-based group has also filed amicus briefs in other patent cases, created an "online boot camp" to educate the public about patent law, and has played a major role in the writing of the Shield Actproposed legislation designed to rein in patent trolls. Other organizations are also starting to get involved, Samuels said. "People are starting to hear a lot more about patents and they're becoming more and more important from a public interest perspective," Samuels said.
While the ACLU and EFF are now garnering attention for their involvement in the patent process, one groupthe Public Patent Foundationhas been challenging patents on behalf of the public for years. Started by Daniel Ravicher in 2003, the group has targeted everything from drug patents to seed patents and is now working with the ACLU on gene patents. The journal Science once called Ravicher "part vigilante, part gadfly, and described him as "a Robin Hood for the patent world's have-nots." PubPat has been "fighting bad patents for the public welfare longer than anyone," the ACLU's Hansen said.
As technology becomes a greater force in people's lives and patents become a more valuable asset to companies, the role of public interest groups is only likely to grow. "Until recently, it's been a closed universe," Hansen said. "But I hope the era of the patent bar as a closed club is over."
This article originally appeared in The AmLaw Litigation Daily.