Indiana Intellectual Property Law News
Indianapolis, Indiana – On April 10, 2014, the Robert H. McKinney School of Law will host
“IP Jurisprudence in the New Technological Epoch: The Judiciary’s Role in the Age of Biotechnology and Digital Media.” The program will run from 9 a.m. to 5 p.m. and will provide 6.5 hours of continuing legal education.
Speaker: Robert A. Armitage, Consultant, IP Strategy & Policy
Location: Wynne Courtroom and Atrium, Inlow Hall, 530 W. New York Street, Indianapolis, Indiana
Attorney Registration: $100 (includes CLE credits)
General Admission: $25
Contact: Kyle Galster, kgalster@iupui.edu, 317-274-0042
Agenda:
9:00 to 9:10 a.m.
Introductory Remarks: Prof. John Schaibley, III, IP Center Executive Director
9:10 to 10:00 a.m.
Keynote Address: “Completing the Codification of U.S. Patent Law: Rising to the Challenge,” Robert A. Armitage
10:00 to 11:00 a.m.
Trolls Under Attack: The Multiple Front Assault on NPE’s/PAE’s
Panel: Sharon Barner, Vice President-General Counsel, Cummins, Inc; Richard Rainey, Executive Counsel, IP Litigation, General Electric Co.; Hamid Piroozi, Director-Legal Purdue OTC; Brion St Amour, Head of IP, IURTC; Prof. John Schaibley (Panel Moderator)
Patent Assertion Entities have been a target for patent litigation reform efforts for many years. While the AIA contained certain provisions to deal with so-called patent trolls, attacks on these entities have multiplied and intensified in the last year. The House passed H.R. 3309, a bill would make dramatic changes to the patent litigation process (including enhanced pleading requirements and fee shifting), the President issued Executive Orders, the Supreme Court granted certiorari in Highmark Inc. v. Allcare and Octane Fitness v. ICON Health (standard of review for exceptional case finding under 35 U.S.C. §285), and numerous states have taken action against NPE’s as well. The panel will explain and analyze these developments, focusing on the perceived need for reform, and the better mechanisms for reducing actual abuses of the system, while maintaining effective enforcement of patent rights.
11:00 to 11:10 a.m.
Break
11:10 a.m. to Noon
Software Patents Under Attack: Patents Allegedly Inhibiting More Innovation Than They Incentivize
Panel: David Jones, Assistant General Counsel for IP Policy, Microsoft Corp.; Bruce Schelkopf, Vice President, Dep. General Counsel & Chief IP Officer, Ingersoll Rand; Kevin Erdman (Partner, Reichel IP), Prof. Gerard Magliocca (Panel Moderator)
With the Supreme Court’s grant of certiorari in Alice Corp. v. CLS Bank Int’l, a software patent for reducing risk has put software patents in general at risk. Are there categories of technology that are a poor fit for patent protection, especially in light of freedom to operate concerns? Should Congress or the Courts make such judgments? Would hybrid IP rights better suit some current categories of patentable subject matter? Do some industries even need the incentive of patent exclusivity to innovate? Was Bilski the bellwether of a trend toward substantially contracting patent eligible subject matter? The panel will address these questions, explain and analyze applicable case law, compare U.S. and international treatment of such subject matter, evaluate the conflicting interests at work, and address the appropriate respective roles of Congress and the courts in this area.
Noon to 1:00 p.m.
Luncheon in Atrium
1:00 to 2:00 p.m.
Biotechnology Patents Under Attack: From Prometheus to Myriad, the Supreme Court’s Narrowing View of Patent Eligible Subject Matter
Panel: Jim Kelley, Senior Director-Assistant General Patent Counsel, Eli Lilly and Co; Paul Berghoff (Partner, McDonnell Boehnen Hulbert & Berghoff), Prof. Emily Morris (Panel Moderator)
Rejecting the course-filter view of §101, the Supreme Court has employed judicially created categories of patent ineligible subject matter to invalidate key categories of biotechnology patents (e.g., Mayo v. Prometheus Laboratories, Inc., Ass’n for Molecular Pathology v. Myriad Genetics), while giving no weight to decades of USPTO practice, and no deference to the Federal Circuit, the specialized appellate court Congress created to develop and refine patent law. Has the Court failed in developing a coherent doctrine in light of the special issues posed by biotechnology, and is the Court institutionally competent to exclude broad categories of subject matter from patent eligibility? Should Congress provide a detailed code of patent ineligibility law? In the absence of Congressional action, what are Myriad’s implications for pharma patents based on isolated, but naturally occurring substances? How will new USPTO rules address such questions? Has Prometheus stolen the fire of biotechnology, particularly personalized medicine? The panel will address these questions, analyze applicable case law, and evaluate whether judge-made patent law provides more doctrinal confusion or enlightenment, and whether Congress should exercise its plenary authority to codify with more specificity categories of patent eligible and ineligible subject matter. The panel will also discuss the March 4, 2014 USPTO Guidance memorandum implementing a new procedure to address changes in subject matter eligibility doctrine under Myriad and Prometheus.
2:00 to 3:00 p.m.
The Federal Circuit Under Attack: The Supreme Court’s Recent Focus on IP – Diagnosing the Causes and Assessing the Results
Panel: Doug Norman, Vice President-Chief Patent Counsel, Eli Lilly and Co.; Kenneth Southall, Chief Patent Counsel, Cummins Inc.; Paul Berghoff (Partner, McDonnell Boehnen Hulbert & Berghoff), Prof. John Schaibley (Panel Moderator)
The Supreme Court issues less than half as many decisions as it did a generation ago, but increasingly grants certiorari in major IP issues, often unanimously reversing the Federal Circuit, the specialized court Congress created to develop and coherent and consistent body of patent law. The panel will analyze recent (e.g., Bilski, Myriad, Prometheus, Bowman v. Monsanto Co.) and pending (Limelight Networks v. Akamai Techs. (standard for inducing patent infringement), Nautilus v. Biosig Instruments (standard for indefiniteness)) cases before the Court, assessing that factors that influence the Court to grant review, and evaluating the Court’s institutional competency in various areas of IP. If judge-made patent law is going to continue to be the primary mechanism for refining patent doctrine, in what areas should the Court defer to the Federal Circuit, and when should it intervene? Have the Justices generally concluded that the USPTO issues too many patents that fail to advance the useful arts, and that the Federal Circuit has failed to police adequately the judicially created exceptions to patent eligible subject matter? Prognostications will include possible Supreme Court review of the Federal Circuit’s 6-4 en banc decision in Lighting Ballast Control LLC v. Philips Electronics North America Corp., reaffirming Cybor.
3:00 to 3:10 p.m.
Break
3:10 to 4:00 p.m.
Copyright, Patents, and Human Rights: A Global Perspective, Prof. Lea Shaver
4:00-5:00 p.m.
Copyright Under Attack by Digital Media: The Need for a Copyright Act for the Digital Age
Panel: Kevin Erdman Partner, Reichel IP; Robert S. Meitus, Partner, Meitus Gelbert Rose LLP; Prof. Lea Shaver (Panel Moderator), Prof. John Schaibley
The last comprehensive copyright law revision occurred in 1976, before personal computers, the internet, cell phones, DVR’s (or even VCR’s) – in short, before the dawn of the digital age. Since 1976, a series of copyright law amendments have occurred, often representing deals by organized interest groups. The term of copyright protection has been expanded, and public domain works have had non-existent copyrights “restored.” The economic and societal consequences of this ad hoc, piecemeal approach to copyright reform have been profound. Meanwhile, the courts have been developing the law in the light of these new technologies, beginning with the landmark Sony decision, “viewed as the ‘Magna Carta’ of both ‘product innovation’ and the ‘technology age.'” In ABC, Inc. v. Aereo, anticipated to be one of the most important copyright cases since Sony, the Supreme Court confronts the question whether the “public performance” right is violated when a company retransmits an over-the-air broadcast to paid Internet subscribers. In the absence of clear congressional intent, how should the Court resolve the conflicting economic interests at stake? Is judicial decision making on such copyright scope questions a sensible way of dealing with the numerous copyright issues that new technologies inevitably spawn? Is Aereo an example of the need for a new Copyright Act for the Digital Age? Moreover, can the copyright reform movement learn from the patent reform movement that resulted in the America Invents Act? What can the continuing patent reform movement learn from the copyright law code based model? Does the detailed copyright code suggest caution for over codifying patent doctrine? What areas of doctrine should remain the domain of common law development?
5:00 to 6:00 p.m. Complimentary cocktail reception in the Atrium following the Symposium. Reception co-hosted by the Indianapolis Bar Association Intellectual Property Section and the IP Center.
Practice Tip #1:
Registration with the conference center is now closed. However, anyone interested in attending the Symposium may contact Kyle Galster at kgalster@iupui.edu or (317) 274-0042.
Practice Tip #2:
Parking is available for a nominal fee at the campus Gateway Garage, located on the corner of Michigan and California Streets (Address is 525 Blackford Street).
Parking is also available for a nominal fee at the Natatorium Garage two blocks west of the law school.
Practice Tip #3:
More information may be found here.