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Sequenom, Ariosa, Eastern District of Texas, Ashley Madison, Washington Redskins, Led Zeppelin – the week in IP



Michael Loney


Sequenom petitioning the Federal Circuit for a rehearing of the Ariosa decision, the Eastern District of Texas taking 44% of US patent cases so far this year, Ashley Madison sending out copyright takedown notices to combat its leak, the latest in the Redskins trade mark case, and a trial being set in Led Zeppelin’s copyright dispute were in the IP headlines this week

Ariosa asks for en banc rehearing

Sequenom has petitioned the Federal Circuit for an en banc review of its controversial Ariosa ruling in June.

An alert from Nutter McClennan & Fish noted that Sequenom is arguing that its invalidated diagnostic patent claims were "collateral damage in what is properly a war on frivolously broad claims directed to things like correlation tables and actual strands of human DNA."

Sequenom warned that the Federal Circuit’s ruling "reads recent Supreme Court precedent to create an existential threat to patent protection for an array of meritorious inventions" beyond those in the personalized medicine and diagnostics industries.

The petition predicted that two negative consequences will result from the ruling if it not reversed. First, researchers will be encouraged to keep their fundamental discoveries secret as long as possible, stunting the development of medical innovations. Second, the uncertainty resulting from the panel's test will discourage investment, as "neither scientists nor venture capitalists will see much to gain in basic biomedical research."

Sequenom said that the panel's ruling was inconsistent with the Supreme Court’s Diamond, Mayo, and Myriaddecisions. It concluded by arguing an en banc review would be the perfect opportunity for the Court to establish a "principled line in this difficult area that is consistent with Supreme Court precedent, continues to reject patents that purport to claim natural phenomena, and yet protects truly meritorious patents" from becoming casualties in the battle of Section 101.

44% of US patent cases filed in TXED

The Electronic Frontier Foundation this week published a blog post taking a look at patent litigation in the Eastern District of Texas.

The EFF’s Daniel Nazer reported that 1,387 cases were filed in the district in the first half of this year – 44.4% of all US patent cases. "And almost all this growth is fuelled by patent trolls," noted Nazer.

He provided data from Docket Navigator that shows just how resistant the district is to granting 101 motions.

Nationwide: 71% granted or partially granted, while 29% are denied (a total of 76 decisions)

Northern District of California: 82% granted or partially granted, while 18% denied (11 decisions)

District of Delaware: 90% granted or partially granted, while 10% denied (10 decisions)

Eastern District of Texas: 27% granted, while 73% denied (11 decisions)

Nazer commented: "While each challenged patent claim is different, the overall trend suggests judges in the Eastern District of Texas are applying Alice in a way that is far more favourable to patent owners."

Ashley Madison turns to copyright takedowns

After 33 million of Ashley Madison’s user records were posted online, extramarital dating service has tried to combat the spread of its database by sending copyright takedown notices out, reports The Guardian.

The website sent notices to social networks and file-sharing sites.

"The action, after 33 million user records were posted online, mirrors the largely-successful attempt to get an earlier, smaller, leak of user data scrubbed from the internet," said the UK newspaper. "But this time, the main dump remains very much online, as the arms race between hackers and hacked has escalated to include the use of technology such as peer-to-peer file sharing protocol bittorrent and the anonymous browsing service Tor."

Some links have been taken down on Twitter and Facebook, and a Reddit subforum about the dump was removed.

Redskins rematch to be heard in 2016

The appeal of Washington Redskins trade mark case will be heard next year, after the 4th US Court of Appeals in Richmond set a December 22 deadline for all briefs to be submitted, reports The Daily Progress. The plaintiff’s and defendant’s initial briefs are due in late September.

Led Zep given date for court gig

Another closely-watched IP case has been scheduled for next year. A federal judge in Los Angeles has scheduled a trial for next spring in a copyright dispute over Led Zeppelin’s Stairway to Heaven, reports Westside Today.

The estate of Randy California allege the British rock band copied the opening of the 1971 Track from Spirit’s 1968 song "Taurus", which California wrote.

"Led Zeppelin opened for Spirit when they first came over here," Francis Malofiy, the estate’s attorney, told City News Service. "There’s no doubt Jimmy Page appreciated Spirit on an emotional and musical level. And, of course, Led Zeppelin has a unique history of lifting their songs from other sources."

Judge Gary Klausner set a trial date of May 10.

In our news this week:

US and China IP experts call for reforms to boost Chinese pharmaceutical industry

Interview: Judge Richard Hacon of the IPEC

USPTO releases second package of PTAB rule changes

Australia's inquiry into IP system reflects TPP concerns

Latest people moves in Europe

Marathon Patent Group and Uniloc to merge

Who’s moving firms in the Americas?

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