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The state of the IP union

Michael Loney, Washington DC

Alice was the dominant topic in the AIPLA session "Addressing the Hot Topics of Today for Tomorrow's Business"

The first question that moderator Timothy Meigs of Beckton Dickinson asked the State of the IP Union Panel yesterday was: what keeps them and their clients up at night? The panel's subtitle was "Addressing the Hot Topics of Today for Tomorrow's Business," but the answer to this question was hardly a hot and fresh one: it's still Alice.

Philip Petti of USG Corporation commented: "It's sort of like we're sitting in the middle of the bus, and there's a crazy person at the wheel." Petti says he and his company feel the "reverberations" of the uncertainty brought on by Alice. From the statistics he's examined, "if our patents are tested, about 70% of them are going to fail," he said. "How do I advise my business people when I tell them we're going to put so much money into patenting that you can't even count on?"

As Microsoft's Micky Minhas sees it, Alice may be dissuading IP owners from other countries from patenting their products here, placing the US at a disadvantage. As China considers accepting patents for business methods, the US is heading "in the opposite direction," he said.

Pfizer's Adrian Looney praised Hatch-Waxman and the BPCIA for clearing the way for generics. But he also questioned whether, if the Alice decision had been handed down before the boom of generics, those pharmaceuticals that have saved many lives would even exist today. It was suggested that it is not just innovation in the biopharma space that Alice stands to inhibit. Qualcomm's Laurie Self said that funding for startups "depends on the VC community believing that you have a predictable right, an enforceable right." She added: "I really do worry that, through this constant diminishment of patent rights, you're making long-term research too risky an investment for startups."

Looney also pointed to the specificity of Hatch-Waxman litigation to one industry as a potential model for reform to 101 issues, which have been treated very inconsistently by the courts. Frustrating though the denial of cert for a number of recent 101 cases is, the panel conceded the Supreme Court has heard a number of IP cases and may still want to see the lower courts shake it out.


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