I join the judgment
of the Court, and all of its opinion except Part I–A and some portions of the
rest of the opinion going into fine details of molecular biology. I am unable
to affirm those details on my own knowledge or even my own belief. It suffices
for me to affirm, having studied the opinions below and the expert briefs
presented here, that the portion of DNA isolated from its natural state sought
to be patented is identical to that portion of the DNA in its natural state;
and that complementary DNA (cDNA) is a synthetic creation not normally present
in nature. (Mayo?)
I am not so excited
about some of his other opinions in other fields.
Interestingly, almost immediately, the media and pundits
began to speculate about his successor.
The first name to rise to the top was U.S. Court of Appeals for the D.C.
Circuit Judge Sri Srinivasan. Judge
Srinivasan has worked for both the Bush Administration and the Obama
Administration. He also served as a
partner at O’Melveny and Meyers, the famous Los Angeles based law firm. Judge Srinivasan was born in Chandigarh,
India and has an MBA and a JD from Stanford University. Notably, in the U.S. Supreme Court IP Stanford
v. Roche case, the counsel of record for the amicus National Venture Capital
Association was Sri Srinivasan. The
brief essentially argued for overturning the Federal Circuit decision because
it could lead to “discouraging private investment in the development and
commercialization of federal funded research ideas” and stifling “of
cooperative efforts between universities and industry.” More specifically, the brief states:
First, the Federal Circuit’s decision would tend to discourage
venture capitalists and established companies from committing the “risk capital
necessary to develop [federally funded] inventions to the point of commercial
application.” H.R. Rep. No. 96-1307, pt. 1, at 3 (1980), reprinted in 1980
U.S.C.C.A.N. 6460, 6462. The Bayh-Dole Act has facilitated such investment
because it has long been understood to create a clear and predictable ownership
framework. The decision below undermines that framework, however, leaving in
its place a regime under which venture capital firms cannot easily determine
who holds the rights to a federally funded research idea. This uncertainty
would discourage the commitment of the risk capital needed to develop and
commercialize raw research ideas.
Second, the decision below would tend to stifle cooperative
efforts between the business community and university faculty. If, as the
Federal Circuit held, individual researchers (faculty, post-doctoral students,
or other graduate students) may assign away the rights to future inventions,
universities might restrict and police the activities of those researchers in
order to protect the ownership of the patents, instead of encouraging technology
transfer through faculty-industry interaction contemplated by the Act.
Moreover, the decision could discourage successful former startups and
established companies from funding research and development in academia through
sponsored research agreements. Companies’ participation in these cooperative
ventures is contingent on the integrity and clarity of their licensing and
assignment arrangements with universities.
Notably, there is not an Asian-American on the U.S. Supreme
Court. Moreover, Judge Srinivasan
recently received a unanimous Senate vote to the DC Circuit making it hard to
challenge him now. Of course, there are
some “ugly” politics going on right now—particularly with gaming a pick and
opposition to one to rile up either the conservative or liberal base of voters. It bites both ways. The next appointee will likely be there for a
very long time. As a side note, I
recently heard a statistic that more than 5% of all startups in Silicon Valley
are founded by Indian Americans.
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