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DBL%20Hendrix%20small.png College chemistry, 1983

Derek Lowe The 2002 Model

Dbl%20new%20portrait%20B%26W.png After 10 years of blogging. . .

Derek Lowe, an Arkansan by birth, got his BA from Hendrix College and his PhD in organic chemistry from Duke before spending time in Germany on a Humboldt Fellowship on his post-doc. He's worked for several major pharmaceutical companies since 1989 on drug discovery projects against schizophrenia, Alzheimer's, diabetes, osteoporosis and other diseases. To contact Derek email him directly: derekb.lowe@gmail.com Twitter: Dereklowe

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March 22, 2010

Ariad Loses on Appeal

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Posted by Derek

And it's an interesting decision. As mentioned here, the company's last stand was on questions of patentability, specifically the written description requirement. Well, the appeals court has ruled this morning, and Ariad's '516 patent does, finally, appear to be invalidated. There's more at Patently Obvious, who seem to be among the first with this story.

From what I can see, the court's decision makes it clear that there really has to be a description sufficient for one skilled in the art to reproduce an invention, and that stating your hypothesis isn't enough to meet this requirement. So in Ariad's case, claiming all sorts of (not yet existing) things to modulate NF-kB function doesn't fly, because they don't actually tell anyone how to do that, just how they wanted to own it if and when someone does. The written description requirement, the court holds, doesn't mean that you have to actually reduce something to practice (although I'd have to say, from my own perspective, that it most certainly would be a good idea to do so if you can), but you have to show how that could be done. "Patents are not awarded for academic theories, no matter how groundbreaking or necessary to the later patentable inventions of others" is a key quote.

Comments (10) + TrackBacks (0) | Category: Patents and IP


COMMENTS

1. d on March 22, 2010 11:51 AM writes...

"Patents are not awarded for academic theories, no matter how groundbreaking or necessary to the later patentable inventions of others"
You got to love that quote

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2. Christian Hesketh on March 22, 2010 1:42 PM writes...

Brilliant, thanks for the post.

Permalink to Comment

3. skyywise on March 22, 2010 9:05 PM writes...

From a legal perspective, a lot of the controversy about the written description requirement is that the Federal Circuit sort of made it up in a case in 1997. From the strict constructionist / legal originalist point of view, this is bad and such decisions should be left to the legislators, who are theoretically better suited to understand these things and write clear laws. The actual effect of the interpretation doesn't matter as much as the fact that it's a judicially created rule, i.e. "judicial activism".

The written description requirement and the result in Ariad substantively deal with a problem, and honestly state the policy goals behind the decision. There is a purpose to patents, and striking the balance as to where patents should be allowed is a delicate matter. This decision is a good thing in that is seems to free up basic discovery-research and actively tries to solve the problem. The lawyers can complain about how it's not a good way for the legal system to operate.

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4. Cartesian on March 24, 2010 11:51 AM writes...

"Patents are not awarded for academic theories, no matter how groundbreaking or necessary to the later patentable inventions of others"

I think something should be done for probably important theories, because this is unfair, even a Nobel prize seems to be not enough when you see what a patent can bring about money. When a theory is good enough to be able to be used, some money should be given, without waiting it is used (it takes time), when it could bring a lot of money (it is just honesty).

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5. Hap on March 24, 2010 12:01 PM writes...

1) Isn't the whole point of gov'ts paying for fundamental research to make it readily commercializable without encumbrance? Patenting fundamental research results without implementation short-circuits research, and makes it harder for people to use it (thus negating much if not all of the reasons why governments would pay for them at all).

2) I thought the point of patents is to disclose useful inventions, not to reward people who find general theories with no implementation. Gravity is gravity whether or not someone knows how it works, while airplanes and hovercraft are inventions that didn't exist before someone thought of them and designed them.

Permalink to Comment

6. Cartesian on March 25, 2010 4:51 AM writes...

For 5. Hap : for gravity it is not obvious but for a new model of atom it is more ; and this because it can be considered as a tool for thinking chemistry and a tool as a price.

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7. Cartesian on March 25, 2010 4:54 AM writes...

Sorry it was "has a price" and not "as a price".

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8. Cartesian on March 25, 2010 5:43 AM writes...

But the model of a patent is not good for a theory, because in order to have this theory used a lot, there is time; and the money has to be given when the person needs it and not when this one is dead. A way should be found to reward the merit as it should be. Anyway it is a better performance (to find a great theory) than to be a great football player, who is paid a lot.

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9. Cartesian on March 25, 2010 10:46 AM writes...

For my theory of atom, I am trying to make it known actually so I am quite generous : I do not want to discourage some persons to study it.

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10. MeetADeadHorse on March 28, 2010 10:04 AM writes...

Seems the old Ariad gang can't let it go ...

greggers_wfb stated:
The Appeal was Unconstitutional...
Amendment VII (7): Rights in civil cases
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any Court of the United States.

We The People...ignored and raped again by the progressive movement...

http://messages.finance.yahoo.com/Stocks_%28A_to_Z%29/Stocks_A/threadview?m=tm&bn=1315&tid=138689&mid=138689&tof=1&frt=2

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