Sunday, April 21, 2013

Innovative Intellectual Property Clinic at the University of Dayton School of Law Provides Students with a Real World Law Practice Experience


Guest blog post by Gregory Richards, a third-year law student at the University of Dayton School of Law and an inaugural member of its IP law clinic.  He has a technical background in the field of chemistry, with a focus on inorganic complexes and electrochemistry.  Greg recently passed the U.S. patent bar examination and is currently seeking a patent prosecution position at a law firm upon graduation from law school in May.

INNOVATIVE INTELLECTUAL PROPERTY CLINIC AT THE UNIVERSITY OF DAYTON SCHOOL OF LAW PROVIDES STUDENTS WITH A REAL WORLD LAW PRACTICE EXPERIENCE

Once again, the University of Dayton School of Law (UDSL) is at the forefront of the movement to provide students with practical experience in the practice of business and intellectual property law.  This spring, the Program in Law and Technology (PILT) at UDSL launched the inaugural Entrepreneurship and Intellectual Property (IP) Law Clinic.  Much like traditional law school clinics, student associates represent clients under the supervision of licensed attorneys.  While traditional law school clinics focus on providing students with courtroom experience, the IP Clinic is geared toward students interested in working as transactional attorneys.  

With UDSL’s emphasis on experiential learning in mind, the IP Clinic was designed to provide students with practical experience.  Students meet with clients, perform legal research, draft memoranda and documents, and perform other client-related tasks.  Additionally, students are focused on helping innovators protect their inventions and aiding new enterprises select and implement their corporate structure.  Furthermore, the IP Clinic at UDSL provides an excellent complement to the PILT externship program, which offers students the opportunity to gain practical experience by working for governmental agency, law firm, corporation, court or legal aid.  
IP Clinic students truly are having the exact same experiences as we as practicing IP attorneys at law firms or as in-house counsel have every day, from conducting in-take interviews with clients, explaining complex legal issues to business people, developing creative solutions to protect clients’ IP rights, etc.  The IP Clinic gives UD students a leg up on their competition and distinguishes its students from other law school graduates interested in pursuing a career in intellectual property law.  
Stephen Weyer, member of the UDSL’s PILT Advisory Council and UDSL graduate, 1997.

The IP Clinic is collaborating with a number of University of Dayton units or offices, including the School of Business Administration, the Innovation Center, the Design and Manufacturing Clinic, the Office of Legal Affairs, and the University of Dayton Research Institute.  These units provide the clients and matters for the IP client students to tackle.  “The innovation, entrepreneurship and creativity that takes place right here on the university campus is fertile ground for IP Clinic students to learn how to meet the needs of actual clients,” said Kelly Henrici, executive director of the Program in Law and Technology, who is supervising the IP Clinic.  This diverse group of university clients exposes students in the IP Clinic to a variety of business and intellectual property law matters, including patent, copyright, and trademark law.

The IP Clinic also exposes students to the business/administrative aspect of the practice of law.  Throughout the semester, the students are responsible for their own time management, billing matters, document management, etc.  Part of this is accomplished using advanced case management software used by many law firms.  Accordingly, the IP law clinic truly mimics a law firm environment giving the students “real world” practical experience. 

In addition to the client-related work, students in the IP Clinic are required to attend a weekly class meeting.  This weekly class meeting provides the students with an opportunity to discuss their work with other members of the IP Clinic, receive feedback and advice on drafts, and promotes teamwork skills that are essential for effective lawyering.

The IP Clinic at UDSL is an innovative method of providing law students with practical experience in the fields of business and intellectual property law that is sure to facilitate the transition from student to practicing attorney.  We fully expect to see other law schools across the country follow the lead of UDSL by offering their own version of a clinical experience devoted to business and intellectual property law.
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Monday, April 15, 2013

Patenting... Real. Comfortable. Genes II ? Judgment Day


Last December, I reported that the U.S. Supreme Court agreed to hear the appeal in ASSOC. FOR MOLECULAR PATHOLOGY V. MYRIAD GENETICS, INC. to decide whether isolated human genes are patentable under the U.S. Patent Act (35 U.S.C. § 1 et seq.)   Today, is "judgement day" {well, sort of} as the Supreme Court hears oral arguments on whether isolated human genes are patentable.  The true "judgement day" will come when the Court issues a decision, expected to be by the end of the Court's session in June.  Many have strong opinions either for or against gene patents. In order to have an intelligent, informed debate, it is important to consider why we have a patent system at all.

The Framers of the United States Constitution knew of the importance of technological progress.
The Congress shall have the power...
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (U.S. Constitution, Article I, § 8, clause 8).
This provides inventors with an incentive to create new products and processes. It also gives companies and investors (e.g. venture capitalists and stockholders), incentive to invest capital looking for a return on their capital investment.

Congress has limited the duration of the monopolistic protection. In return for the protection, the inventor must disclose his or her invention to the Patent Office which, in turn, discloses the information to the general public.

The Patent Act was drafted to accomplishes two goals. First, it encourages innovation and discovery through its incentive of limited monopoly Second, the patent system promotes the disclosure of useful technology to the general public by putting it in the public domain.

Opponents of gene patents say, "Keep your hands off my genes." They argue that human genes are naturally occurring, not the creation of human hands, and thus, not the subject of patents. Therefore, opponents say that genes are in the public domain for all to use. Further, some opponents believe that patenting genes stifle innovation of other researchers who fear lawsuits for patent infringement from the patent owner if they conduct their own research pertaining to the patented gene. In addition, some proponents believe that for public policy reasons and pubic health concerns, physicians should not be prevented from access to the best diagnostics and therapeutic treatments which may include the gene discoveries of another.

Proponents of gene patents assert that biotech and pharmaceutical companies need patent protection for isolated genes. These companies spend millions (or even billions) of dollars to isolate genes and to discover the role that these genes play in disease or in the therapeutic treatment of disease. Absent patent protection, anyone could use the million/billion dollar discovery without having to invest a single dime. Further proponents of patenting genes say that no one would invest in companies if anyone could use their discoveries for free. As a result, biotech companies would cease to develop new diagnostics and therapeutic treatments predicated on isolated gene sequences. Therefore, without the financial incentive of patent protection, new genetic diagnostics and therapeutic treatments will never be made. Without patent protection for gene discoveries, entire industries will be lost and/or negatively impacted. Accordingly, proponents argue that patenting genes accomplishes the two goals of the Patent act, offering both economic development and providing a pathway for new discoveries of disease diagnostics and therapeutic treatments.

© Stephen J. Weyer, Stites & Harbison, PLLC, 2012
Send email feedback- sweyer@stites.com


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Monday, April 8, 2013

Can you hear me now? Apple's EarPods accused of infringing Hearing aid company's HearPods

Apple Inc., owner of the U.S. federally registered marks, EarPods ® and Apple EarPods ® has been accused of infringing the trademark of Randolph Divisions' HearPods ®.  It's a struggle to believe that a consumer of hearing aids (presumably, a sophisticated consumer and one not likely to make an impulse purchase of a hearing aid) would think that Apple's iPod/earbud-style earphones, Earpods®, are associated with a company known for making hearing aids.  Therefore, it seems unlikely that such a consumer would be confused as to the origin of Apple's Earpods and believe there is a connection with the hearing aid company Randolph Division.  Further, unless you are both visually impaired and hearing disabled (i.e., the Helen Keller's among us), it's hard to envision that one would not see the difference between the marks "EARpod" and "HEARpod".  Finally, what makes the alleged infringement even more incredulous is that the markets for the two products, mobile audio/music and hearing aids, are completely different.  In the end, it seems like Randolph Divisions will have an uphill battle to prove trademark infringement.