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In re Kubin: Federal Circuit Ignores Principles of Structural Obviousness in Applying 'Obvious to Try' Test
On April 3, 2009, a three-judge panel of the Court of Appeals for the Federal Circuit unanimously affirmed the decision that the Board of Patent Appeals had reached in Ex Parte Kubin, 2007 WL 2070495 (B.P.A.I. May 31, 2007), thereby reinforcing and extending the applicability of the “obvious to try” test in biotechnology patent law practice. In furthering the “obvious to try” standard, however, the Federal Circuit also undermined its own precedent regarding biochemical structural obviousness ' namely, that the nucleotide sequence of a previously unknown DNA sequence encoding a known or partially known polypeptide is non-obvious. Thus, In re Kubin, 2009 WL 877646 (Fed. Cir. April 3, 2009), now appears to be the first case in which a defined biochemical structure was found to be obvious despite the fact that the structure was previously unknown and unpredictable.
In Ex Parte Kubin, the Board determined that a DNA sequence encoding a functionally characterized but unisolated receptor protein (the NAIL protein, which is located on the surface of certain types of immune cells) was obvious under 35 U.S.C. ' 103(a). The patent examiner had rejected Kubin's claims as obvious over a combination of prior art teachings disclosing: 1) the functional characteristics of the NAIL protein on cultured cells, 2) a monoclonal antibody that binds to a portion of the NAIL protein, and 3) a prophetic example of how to isolate NAIL DNA and the protein using conventional cloning and sequencing methodologies. Notably absent from the prior art, however, was any teaching or suggestion of either the amino acid sequence (complete or partial), or any working example of a method by which to obtain the amino acid or DNA sequence of the NAIL protein.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.
Judge Rules Shaquille O'Neal Will Face Securities Lawsuit for Promotion, Sale of NFTs
A federal district court in Miami, FL, has ruled that former National Basketball Association star Shaquille O'Neal will have to face a lawsuit over his promotion of unregistered securities in the form of cryptocurrency tokens and that he was a "seller" of these unregistered securities.
Why So Many Great Lawyers Stink at Business Development and What Law Firms Are Doing About It
Why is it that those who are best skilled at advocating for others are ill-equipped at advocating for their own skills and what to do about it?
Blockchain Domains: New Developments for Brand Owners
Blockchain domain names offer decentralized alternatives to traditional DNS-based domain names, promising enhanced security, privacy and censorship resistance. However, these benefits come with significant challenges, particularly for brand owners seeking to protect their trademarks in these new digital spaces.
Coverage Issues Stemming from Dry Cleaner Contamination Suits
In recent years, there has been a growing number of dry cleaners claiming to be "organic," "green," or "eco-friendly." While that may be true with respect to some, many dry cleaners continue to use a cleaning method involving the use of a solvent called perchloroethylene, commonly known as perc. And, there seems to be an increasing number of lawsuits stemming from environmental problems associated with historic dry cleaning operations utilizing this chemical.