Legal Research Blog


Who Owns Your Genes? Part II

Photo By Etsy Ketsy

Can our genes be patented? More importantly, what consists of a change that is significantly patentable? In a follow up to last year’s blog entry regarding the case Association of Molecular Pathology, et al. v United States Patent and Trademark Office, et al we continue to look into this potentially revolutionary biotechnology case.

The case covers the patent dispute over the BRACA1 and BRACA2 genes as well as the diagnostic tools involving these genes which are held by Myriad Genetics of Utah. Mutations of these genes indicate a strong possibility of breast and/or ovarian cancer. Plaintiffs have argued that the patent was improper because the DNA was part of the human body and therefore part of nature; while the defendants have argued that the chemical was isolated and the copyright protects the work that went into their research.

The urgency behind this case is rather incredible. The earlier one can determine whether or not they are likely to develop or redevelop the cancers more treatment options become available. The patents on these genes and the test for mutations have created a monopoly as researchers, patients, and their doctors all have to go through Myriad Genetics. Testing alone, if not covered by insurance, can be $3,000 per test. Saying that billions of dollars are at stake is an understatement.

Last year a Federal Judge had struck down some of the patent, namely that the isolation of the genes was not enough to patent them. Gary Cohen of the Foundation Medicine speaking with The Atlantic pointed out that this ruling is likely a transformation of thinking resulting from the digital age:

“We’ve been accustomed to thinking of DNA as a molecule, a chemical entity (which, of course, it is). But in this more sophisticated era, we understand that DNA is not “just” a molecule; its an information-carrying molecule. Genes are better thought of as packets of information, not mere molecules, Judge Sweet reasoned. This reasoning is key to his decision — because the information encoded by a gene is the same, whether its sitting amongst its natural neighbor genes, or in isolated form. That’s why researchers want to isolate genes — because they are useful in all sorts of ways, but only because the isolated form contains the same genetic instructions as the naturally-occurring form. Using this information paradigm, the judge reasoned that “isolation” does not render a naturally-occurring gene something novel, something patentable. This part of the ruling is what makes it so interesting — its very much consistent with “information age” thinking — bits, bytes, genetic base pairs, genes: all information carriers.”

Today that decision is being appealed. As, one can imagine there are a lot of people waiting on the outcome of this case. Regardless of how the court decides, it will unlikely be the final salvo and will proceed to the Supreme Court.

Social Media Sensibilities

A great article featured on the Social Media Today blog got us thinking about all the ways to use social media, and all the ways it can go wrong. Commentary on social media etiquette has been present far and wide for a few years now and yet the messages don’t seem to be getting through.  We can’t get through a day or even a few hours without hearing about a criminal apprehended as a result of an unintentional confession on Facebook or a high-profile figure under fire for a spontaneous, and poorly-worded, tweet. Has social media really made it that much easier for all of us to mess up? In some ways, yes, but the ever-changing realm of communication is not entirely to blame. While the playing field has seen a complete remodel, all the same rules are still intact.

The idea that Google, or the Internet more generally, is the new resume is one that has been the topic of many presentations and also one that we feel warrants repetition. A painstakingly worded resume may find its way to the top of the pile only to be at the bottom of the trash bin moments later if a certain Google hit is deemed inappropriate. It should go without saying that this same scenario can repeat itself when developing relationships with prospective clients.

Brad Friedman, President of The Friedman Group, LLC and Social Media Today contributor, outlines how an active social media presence can, when used unwisely, lead to unethical practices in “Lawyers Must Embrace Today’s Technology & Web 2.0 Part 1”. Along with the evolution of social networks we have seen an increase in venues for breach of contract, privacy, attorney-client privilege, you name it, but we’d venture a guess that it doesn’t have to be this way. There are no announcements at the top of Facebook, Twitter or any other site that reads “Please share your innermost feelings below” or, “Forget everything you’ve learned about privacy here” and yet most of us have an urge to do just that when we login. The bottom line that we have arrived at: be smart. For more details on how to avoid any of these types of errors, particularly as a legal professional, we highly recommend perusing Friedman’s tips.

Veni, Fastcase, Vici: During 5-Minute Recess, Man Wins Case with Fastcase iPhone App

Fastcase legal research for iPhone and iPadWe’re loving this article from the Pittsburgh Post-Gazette about how more lawyers are moving to online legal research.  The article leads with a Fastcase success story:

Marc Daffner needed to check his iPhone.

The Allegheny County judge was staring at him from the bench, waiting. As was the district attorney to his right.

But he really, really needed to check his iPhone.

The fate of Mr. Daffner’s client depended on it, so he asked for a five-minute recess.

With his iPhone finally in hand, Mr. Daffner used an app to find session notes on a sentencing statute. The notes proved the DA was incorrectly applying the statute to put Mr. Daffner’s client behind bars. “It saved five to 10 years of my client’s life,” he said.

The app, of course, was Fastcase for the iPhone, which Marc used in the heat of the moment to win his case.

This is one good example of how the future of legal research is more mobile — not that legal research will be done primarily on mobile devices.  The desktop is more convenient and powerful, at least for now.  But mobile tools will empower people to do occasional research in more places, and at different times, than they could traditionally.

Marc Daffner’s experience shows that there are new tools in the trade, such as smartphones and tablets, which lawyers can use to their advantage in the practice of law. Lawyers can use the new tools to deliver unique value, such as real-time research in court.  And we have to confess, we love stories like this — it’s fun to be one of the new tools in the lawyer’s bag.

Revolt Against the High-Tech Classroom?

Photo by Iain Buchanan

In Law Technology News this week there was an article discussing the use of laptops in law schools that caught our collective eye. According to the article, a paper written by a Temple University James E. Beasley School of Law professor Kristen Murray “concluded that laptops actually can enhance the educational experience — and suggests educators think twice about banning them.”

What was surprising about the article was not necessarily that a growing number of students brought laptops to lecture or even how they used them in class- whether it is to verify answers, take notes, or Facebook chat. Five minutes with any twenty something would be able to testify to the trend. It was the suggestion that there was a trend of professors banning the devices in the classroom. Only a few years ago law students would not dare show up to class without their laptop. Many schools required first year students to have them. PowerPoint lecture presentations from professors were becoming the rule, not the exception, and many departments were providing lectures online for later viewing.

Apparently, the backlash has been building for some time. According to a Washington Post article professors have banned laptops from their classrooms at George Washington University, American University, the College of William and Mary and the University of Virginia. One professor at Georgetown Law had banned them from class as early as the 2006-2007 academic year. The feeling being that they offer too many distractions for the user as well as the students around them. Professors also fear that students merely type without thinking about what it is that is being said- a familiar complaint that has not been limited to the laptop.

Murray wrote in “Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom” that “laptops should be a welcome addition to law school classrooms because they can provide substantial educational benefits to today’s law students.”

Plenty of professors still allow laptops. According to the Washington Post Siva Vaidhyanathan, an associate professor of media studies and law at U-Va., senses a losing battle. “In an era of iPhones and BlackBerrys, Internet-ready cell phones have become just as prevalent in classrooms as laptops, and equally capable of distraction.”

“If students don’t want to pay attention, the laptop is the least of your problems,” he said.

What do you think? Do laptops in class do more harm than good?

Game On

Photo by Joo0ey

Games are definitely on our mind here at Fastcase. March Madness is in full swing, MLS opening day was just this past weekend, and the beginning of baseball season is within sight. While the NFL lockout and the beginning of the Barry Bonds trial may be the big legal hitters right now, there are other games to be enjoyed – like those in front of your TV, PC, and handheld of choice.

The videogame industry has been giving lawyers a lot to cheer about, especially as its mainstream popularity continues to grow. Mainstream acceptation of the pastime has grown through the introduction of devices like the Wii and DS from Nintendo and the Blu-Ray capacities of SONY’s Playstation 3. Who could forget the iPhone platform and the popularity of games like Angry Birds or Flight Control?

This is a multibillion dollar industy, American consumers have spent at least $15.4 billion on game content, according to estimates from market research group NPD. In comparison, movie box office revenues totaled $10.5 billion in 2010. As the industry continues to grow, so do its legal requirements. That is why on February 8 the Video Game Bar Association launched with a five-member board that includes in-house counsel and firm lawyers.

The association, which hopes to host continuing legal education seminars and networking events, has sent out membership invitations to over 100 lawyers, according to The National Law Journal. In an interview with Law Technology News Patrick Sweeney, head of Reed Smith’s video game practice, who helped launch the new bar association says that “Over the years, the number of people whose core practice is in the games business has grown significantly,” said “And there is no organization that allows us to get to know each other and share ideas. The Copyright Society is too broad. The California bar, or anything California-based, doesn’t necessarily fit, either. It goes beyond any territorial or broad practice area affiliation. We want something more specifically catered to us.” The group’s inaugural meeting was held on March 2 at the Game Developers Conference in San Francisco. Hopefully, a dedicated online site will be created relatively soon so that news and community issues can be shared.

For now, over at Video Game Law Blog there is a .pdf file that you can peruse that contains a list and brief summary of cases that the industry has been a part of for the last thirty years, from copyright infringement cases to first amendment rights. There is also a run down of ongoing legal action, such as the pending decision in Schwarzenegger v. Entertainment Merchants Association. If you are interested in an area where technology, entertainment, copy right, and first amendment issues collide there are plenty of places to look. Two that we recommend are Gamasutra, a leading industry site and Game Politics, a sister site of the Entertainment Consumers Association.