1. Can Law Keep Up with Technology?

    Anyone who owns a smart phone knows: keeping up with advances in technology is out of reach of most users. But what happens when technology moves faster than the law? 

    Case(s) in point: 3D printing, human gene patents, and ownership of digital media. All virtually unimaginable 25 years ago and all at the forefront of challenges to existing intellectual property law.

    What’s at stake? Financial interests of inventors, researchers, users, artists, and the like, to be sure. But also future technological advances, medical breakthroughs, creativity itself…

    Right now, there are only questions. Answers will certainly come – but will they be fast enough to keep up with the technology?

    Here’s an overview of the core issues, from lawyers on JD Supra:

    1. What happens with patent law collides with 3D printing?

    “… 3D printing raises intellectual property questions on many levels.  For example, what protection is available for the [computer-aided design] file itself, and what are the ideal terms under which these design files should be licensed or otherwise made available for use?  In terms of the printed object, how can users of the technology determine whether printing copies of existing objects, or enabling others to do so, violates another’s copyright or other intellectual property rights? … 

    [C]opyright protection does not extend to functional elements of three dimensional works.  While the shape of three-dimensional objects may be protected by design patent, or may constitute protectable trade dress, neither design patent protection nor trade dress protection extends to functional elements of a product’s shape or configuration.  However, access to this technology may put intellectual property rights that do cover functional features, e.g. utility patents, at greater risk of infringement by a wider class of potential infringers than previously possible.” (Downs Rachlin Martin)

    2. Just how far should patents on human genetic material extend?

    “Since at least the 1980s, the United States Patent and Trademark Office (USPTO) has granted patents on ‘isolated nucleic acids,’ including nucleic acids that correspond to human gene sequences. According to the USPTO, nucleic acids do not naturally exist in an isolated state, thus isolated nucleic acids are purely human-made compositions. Isolated nucleic acids are therefore patent-eligible as long as they have a specific and substantial practical utility. These patents are incredibly important to biotechnology, pharmaceutical and molecular diagnostics companies, as they are the most effective way (and often the only way) to recoup the substantial R&D investments required to develop new therapeutics and diagnostic tests.

    Myriad Genetics and Laboratories, Inc. owns a patent covering isolated nucleic acids corresponding to the gene sequence of BRCA1, a gene locus related to breast cancer. Myriad’s nucleic acids are useful as probes for detecting mutations in this locus that correlate with a high risk of breast cancer. The American Civil Liberties Union (ACLU), on behalf of several medical groups, patient advocacy groups and individual patients and doctors, challenged the validity of this patent, arguing that naturally occurring nucleotide sequences cannot be patent-eligible simply by isolating them, because their functionality is defined by their naturally-occurring sequence.” (Baker Donelson

    3. Who “owns” digital media, and what rights do they have to resell it?

    “The first sale doctrine allows owners of copies of copyrighted works (e.g. used books, CDs, DVDs) to resell their copies without restriction, and it is this distinction between sales and licenses that has made the licensing model the preferred method for software transactions, and increasingly, the preferred method for the sale of digital music and ebooks. Recent federal court decisions have offered some clarity and highlighted the limitations of the doctrine as applied to hard copies of licensed software and promotional music cds, yet leaving open questions about how the doctrine would apply to downloaded software and other media content… 

    The European [Court of Justice] held, in accordance with the principles of the EU Software Directive, that the transfer of a copy of a computer program under a license agreement for an unlimited period by the copyright holder to a customer, in return for payment of a fee designed to enable the copyright holder to obtain a remuneration corresponding to the economic value of the copy of the work, triggered the first sale doctrine… On the other side of the debate, a New York district court analyzed the legality of an online service that sold ‘used’ digital music files previously purchased from iTunes and held that the first sale doctrine was inapplicable.” (Holland & Knight

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    The updates:

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    Additional reading:

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    Find additional Intellectual Property Law updates at JD Supra»

Notes

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