On April 15, 2013, the United States Supreme Court heard oral argument over the question of whether human genes may be patented in the case of Association for Molecular Pathology v. Myriad Genetics.  The case is the result of a group of researchers, medical groups and patients suing Myriad Genetics, a Utah biotechnology company, in 2009.  Myriad Genetics discovered and isolated two genes (BRCA 1 and BRCA 2) that are recognized as being closely related to hereditary breast and ovarian cancer.  The company obtained a patent for this discovery, which effectively gave it a twenty-year exclusive to the use and research of these genes.  The challenging parties claim that this patent is invalid.

Natural occurrences cannot be patented, and therein lies the question of whether a human gene may be patented.  Mark Capone, president of Myriad Genetics Laboratories, was quoted by NPR as stating that the 20,000 genes in the human body are part of a six-foot-long molecule that’s “coiled and compacted and stuffed into each cell.” Additionally, “What Myriad was able to do is sort through all those 20,000 genes and find the two that were highly linked to hereditary breast and ovarian cancer.”

In a release the day before oral arguments, Peter Meldrum, President and CEO of Myriad Genetics, wrote in USA Today.  “We think it is right for a company to be able to own its findings, just as pharmaceutical and other companies do all the time.  The Supreme Court case could have broad implications for biotech, agriculture and animal health industries and the development of cutting-edge services of enormous benefit to society.”

During oral argument, the attorney for Myriad Genetics, Gregory Castanias stated that, “What Myriad inventors created in this circumstance was a new molecule that had never before been known to the world.”

The opposing parties are adamant that this process is not patentable since this human gene is something that occurs naturally.  NPR quoted Christopher Hansen of the American Civil Liberties Union, the attorney for the challengers, as stating, “All Myriad does is take a part of the body out of the body. . . It is no different than taking a kidney out of the body. Just because you are the [first] person who takes the kidney out of the body doesn’t entitle you to a patent on kidneys.”

If the Supreme Court eventually rules in favor of Myriad Genetics, it will be granting the company the exclusive right to use and research the genes for diagnoses and treatments.  This, in effect, will not allow diagnostic and therapeutic companies to compete over the quality and price of their tests.  Despite these concerns, it appears that after oral arguments that the Supreme Court may not rule in favor of Myriad Genetics.  According to a NBC report, “It would be one thing, several of the justices said during Monday’s oral arguments, for a company to seek a patent on a test for breast cancer that was developed by analyzing a human gene, but it would be going too far to be awarded a patent on the gene itself.”

Google’s latest revolutionary invention, Google Glass, is set to hit the market starting this week.  The part-smartphone, part-mini-computer device looks like a pair of sunglasses, with a small glass box in the upper right-hand corner that will display information to a user without obstructing his line of vision.  Google Glass’s wearable technology and patented design displays information in a hands-free manner and users interacts with the product through voice commands, similar to the interaction users have with Siri, Apple’s leading lady on the innovative voice command front.  Some features that the product enables users to do are instantly document their day-to-day life, receive step by step real-time directions, track people they interact with using information and stats, conduct Google searches, take and share pictures, film videos, and translate on the go.  Although the product is incredibly new, Google has confirmed that after the initial test runs are through and the product enters the mass market, they will eventually work with sunglass retailers as well as retailers for prescription frames and lenses in order to afford everyone a uniquely tailored Google Glass experience.

In order to get their product out there, into the hands of Americans other than Google’s own employees who have been testing the product for a long while now, Google launched a campaign for their technology-loving followers.  Google’s #IfIHadGlass contest instructed U.S. residents to submit 50-word applications using either Twitter or Google Plus, explaining how they planned to use the new Google Glass technology.  At the end of the contest, Google awarded 8,000 lucky winners with their very own Google Glasses for only $1,500, and the opportunity to test drive some of the most incredible technology we have ever seen months before the product is publicly available.

To any person, technology buff or otherwise, this sounds absolutely amazing.  But it also sounds incredibly frightening.  Privacy debates have already arisen over the really-cool-but-kind-of-controversial product, and there are certainly more on the way.

Since the advent of the smart phone and instant media sharing, our privacy rights have certainly been minimized.  The ability for anybody to snap a photo in any public place has become an issue of growing concern for many, including professionals, celebrities, political figures, and otherwise.  But there are several additional dangerous components of Google Glass that seem to put our privacy interests at even greater risk.

First, there is the issue of simply being in someone’s frame of vision in order to be photographed or video recorded that places any passerby at the risk of having no idea whether or not they are on camera.  The lack of notice seems to be a disturbing privacy concern for legal analysts who have already been tuned into the Google Glass revolution for months.  Google has defended this concern by confirming that the purpose of the test market is to work out any potentially dangerous concerns, such as this one, before the product enters the mass market.  But it seems like this feature is fundamental to the ease and hands free nature of the device, almost ensuring that this problem will persist.  By this same token, a user may not even realize what kind of information they are capturing or recording, leading to the opportunity for copyright infringement, exposure of trade secret, and many other intellectual property related violations of privacy afforded by these protections.

Mark Cohen, a Visiting Professor at Fordham University School of Law, publishes ChinaIPR.com, a highly informative blog that, in Cohen’s words, “aims to provide access to information, news and events related to IP development in China.”  As his blog readily displays, Cohen is one of the West’s leading experts on all things China IP-related.  He has amassed an impressive set of experiences over the past quarter century, including stints as an Attorney-Advisor at the Office of International Relations at the United States Patent and Trademark Office, Senior Intellectual Property Attaché at the U.S. Embassy in Beijing, Of Counsel to Jones Day’s Beijing Office, and, most recently, Director of International Intellectual Property Policy at Microsoft.  He also speaks and reads Mandarin Chinese fluently.

While most Westerners are aware of the significant role that China now plays in the global economy, fewer are aware of the implications that China’s economic rise has for the holders of intellectual property rights.  Cohen’s blog narrows that knowledge gap.  With frequent updates, ChinaIPR.com features posts on a wide range of matters, including, among other things, legislative trends, rates of enforcement, application rates for IP rights, and analysis of long-term trends.  Many of these issues are often covered primarily by Chinese sources, so Cohen’s blog serves as an invaluable steppingstone for non-Chinese-speaking audiences who are curious about IP developments in China.

Cohen has a fondness for empirical data at the expense of anecdotal evidence.  In that vein, one of Cohen’s recent posts explores data on how foreigners seek information about Chinese IP.  According to Cohen’s analysis, Chinese government sources, while a major source of IP-related information, are nevertheless infrequently consulted by Americans, regardless of whether the sources are in Chinese or English.  Focusing on the website of China’s State Intellectual Property Office, Cohen related that nearly 72% of that site’s total visits in 2012 were from China, while a relatively paltry 11.2% of visitors were from Europe.  Visitors from the United States, however, comprised a scant .95% of SIPO’s hits last year.

Delving further, Cohen found that most of SIPO’s website’s hits in 2012 from Europe and the United States were, surprisingly, for Chinese-language pages.  In fact, roughly 80% of visitors to SIPO’s English language pages were China-based, while only 8.87% of such visitors were in the United States.

Which topics were visitors to SIPO’s English-language pages perusing?  According to Cohen, the overwhelming majority of such visitors – roughly 90% – sought information about how to file a patent application in China, a process that Cohen described as an information-intensive effort.  The next largest proportion of visitors – nearly 6% – sought information about law and policy, while smaller proportions of visitors landed on SIPO’s FAQ, News, Patent Examination, and “About SIPO” pages.

With characteristic rigor, Cohen also compared the above data to data on visitors to the EU China IPR Help Desk, a leading Western online source of information about China’s IP system.  While far fewer people in total visited the IPR Help Desk’s website than visited SIPO’s website, Cohen noted that the number of page views on SIPO’s English-language law and policy page was comparable to the number of overall visitors to the IPR Help Desk’s website, which provides similar law and policy-related information.  From this finding, Cohen concluded that “the IPR Help Desk is performing an important function in providing Western language information on China’s IP system to Europeans,” and that “English language websites serve an important function in disseminating information on developments in China.”

Apple Inc. is one of the valuable brands on the planet. Ownership of powerful trademarks such as iPhone, iPad, Mac, and others has made Apple one of the premier intellectual property powerhouses in the world. Recently, however, Apple has been running into a few problems concerning its intellectual property or, in a few cases, lack thereof. Last year, Apple finally settled a months-long battle with China-based Proview Technology over the rights to the trademark “iPad” in China. The prolonged court battle (in which Apple had claimed that it had secured the rights through a Proview Subsidiary for $55,000 in 2009) culminated in a $60 million settlement for Proview.

This week, Apple Inc.’s ever-growing IP armada was deprived of another piece of artillery. The United States Patent and Trademark office flagged Apple’s filing for the trademark “iPad mini.”  The examiners found that the term was “merely descriptive” and that insufficient proof that the item was going to be used for sale was submitted with the application.

The examiner, Ms. Lee-Ann Berns, did have one peculiar issue with Apple’s application. Apple submitted a screenshot as proof of use in sale; however, the examiner noted that: “The mark and picture of the goods on the specimen are not sufficiently proximate to the ‘buy now’ tab.” Luckily for Apple, the denial was just first office action and seems to be a relatively easy fix. Apple has 6 months in which to revise its application which should be more than enough time for Apple and its legal team to sort out the corrections.

However, the examiner’s notes do provide some interesting food for thought. She argued that “mini” is only a descriptive adjective referring to the product and therefore it cannot be regarded as “a coherent trademark.”  Berns raised an interesting argument that even though Apple already owns the rights to the iPad trademark, that the term iPad was merely descriptive: the “i” as an abbreviation of internet and “Pad” which is regularly associated with tablet computers. It should be noted that these descriptiveness objections were almost immediately withdrawn by the USPTO, but did Ms. Berns have a good point? Or does Apple have a strong case that they are responsible for the word “pad” synonymous with tablet computing?