Volume 18, Issue 1 Surveys

Federal Trade Comm’n v. Activis, Inc.

133 S. Ct. 2223 (2013)

By Robert I. Brewington

A pharmaceutical drug manufacturer attempting to introduce a new brand-name drug to the market must first submit a New Drug Application (“NDA”) to the Food and Drug Administration (“FDA”). While the FDA reviews the application, the drug is subjected to a lengthy and vigorous testing procedure. If it survives this process, the FDA then approves the brand-name drug, and the manufacturer receives the green light to commence marketing and sales. The door then opens to generic drug manufacturers to seek approval for the marketing of identical, generic versions of the drug.

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Ultramercial, Inc. v. Hulu

722 F.3d 1335 (Fed. Cir. 2013)

By Joseph E. Gruber Jr.

Plaintiffs Ultramercial, LLC and Ultramercial, Inc. (collectively “Ultramercial”) appeal the district court’s dismissal of a patent infringement claim against Defendant WildTangent, Inc. (“WildTangent”) for failure to state a claim. The district court found that the subject matter of the allegedly infringed patent was not eligible for protection under 35 U.S.C. § 101.

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Ass’n for Molecular Pathology v. Myriad Genetics

133 S. Ct. 2107 (2013)

By Michael H. Hewitt, Jr.

Myriad Genetics, Inc. (“Myriad”) is a molecular diagnostic company based in Salt Lake City, Utah. Myriad provides a number of exclusive technologies to medical facilities for evaluating patient susceptibility to certain diseases and tracking the progression of those diseases. Myriad frequently utilizes genetic material in both research and practice. Between 1995 and 1996, Myriad filed several patents for certain naturally occurring sequences of human deoxyribonucleic acid (“DNA”) and synthetic sequences of complementary DNA (“cDNA”). Myriad discovered that the specific sequences, named BRCA1 and BRCA2 (collectively “BRCA1/2”), are useful in identifying an individual’s predisposition to breast and ovarian cancers.

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Cariou v. Prince

714 F.3d 694 (2d Cir. 2013)

By Midori K. Hirai

In 2000, Plaintiff Patrick Cariou, a French professional photographer, published Yes Rasta, a book of portrait and landscape photographs he took while living among Rastafarians in Jamaica. Cariou is the sole copyright-holder of these photographs and has never consented to their use by others. Defendant Richard Prince, a professional appropriation artist and photographer; Gagosian Gallery, Inc.; and Lawrence Gagosian, the owner of Gagosian Gallery, Inc., (collectively “Defendants”) produced and showed, respectively, a series of paintings and collages incorporating Cariou’s Yes Rasta photographs. These paintings and collages were part of Prince’s Canal Zone show at the Gagosian Gallery, where Gagosian Gallery, Inc. and Lawrence Gagosian (collectively “Gagosian Defendants”) also sold an exhibition catalog that included images of the Canal Zone works.

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Kirtsaeng v. John Wiley & Sons, Inc.

133 S. Ct. 1351 (2013)

By Guy E. Noyes

Respondent John Wiley & Sons, Inc. (“Wiley”), a publisher of academic textbooks, often assigns the rights to publish and distribute its copyrighted works outside of the United States to its wholly-owned Asian subsidiary. The Asian versions of Wiley’s books include a notice stating that the books are not to be taken into the United States without permission At the time of the conduct at issue, Petitioner Supap Kirtsaeng was a student from Thailand studying in the United States through a Thai government scholarship program. While in the United States, Kirtsaeng asked friends and family in Thailand to buy foreign edition English-language textbooks, including certain books published by Wiley’s Asian subsidiary, which stores in Thailand sold at lower prices than stores in the United States. When Kirtsaeng received the textbooks, he resold them in the United States at profit and reimbursed his friends and family for the price of the Thai books.

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CLS Bank Int’l v. Alice Corp. Pty. Ltd.

717 F.3d 1269 (Fed. Cir. 2013)

By Daniel Tate

Defendant Alice Corporation (“Alice”) owns U.S. Patents 5,970,479 (the “‘479 patent”), 6,912,510 (the “‘510 patent”), 7,149,720 (the “‘720 patent”), and 7,725,375 (the “‘375 patent”), all of which involve the management of specified, yet unknown, future risks. Specifically, the patents relate to the use of a third party to reduce the settlement risk between a first and second party in financial obligations. Plaintiffs CLS Bank International and CLS Services, Ltd. (collectively “CLS”) brought suit against Alice in the United States District Court for the District of Columbia, seeking a declaratory judgment of noninfringement, invalidity, and unenforceability with regards to the ‘479, ‘510, and ‘720 patents, followed by a request for summary judgment. At issue in case was CLS’s assertion that Alice’s claims reflect ineligible subject matter and are therefore invalid under 35 U.S.C. § 101.

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