Claim Interpretation: What the word “a” or “an” means in a claim
I find that many people are surprised to find out the meaning of the indefinite article “a” or “an”. When used in a patent claim after the term “comprising”, it means “one or more” and not just “one”. The article “a” is interpreted to mean “one” only in rare circumstances when it is very clear that the patentee means only one.
For example, if a claim recites: “A vector comprising a gene of interest….” then the vector may contain one or more genes of interest.
No tags for this post.Schmeiser v Monsanto
By this time, most of you have heard that ‘Monsanto won’ over Percy Schmeiser in the Canadian Supreme Court. Actually, Mr Schmeiser was found to have infringed Monsanto’s patent but no damages were assessed. It was a close decision and a momentous one for two main reasons. Several commentators have written about how genetically-engineered plants are essentially, if not expressly, protectable because of the gene introduced. In another blog entry, I will discuss that issue. For this entry, however, I raise the possibility that the Court has defined “use” of a patented invention in such a way that that there may now be an exemption for basic science research in Canada.
Monsanto Canada Inc v Schmeiser 2004 SCC 34.
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A Well-Kept Notebook
Here are some suggestions for what constitutes a well-kept lab notebook:
1- The notebook is bound.
2- Each page is dated, including the year.
3- Photographs, etc. that are taped in are marked with a line or scribble that extends onto the notebook page.
4- Pages are written on sequentially. (Use the Table of Contents or a “go to page N” “from page M” to keep track of the flow of different projects.)
5- Empty spaces of any significant size are marked out.
6- Each page is signed by the notebook keeper and a witness who has read and understood what is on each page.
7- The page should ideally be witnessed right away but at least within a short period of time after it is done.
8- If you need to amend something on the page after it is signed, put it on a new page and refer back.
9- Give each experiment a Title, write a brief Background or Purpose of the Experiment, Protocol, Results, and Interpretation of Results.
10- Keep the notebook in a safe place. Do not take it home or let your dog eat it.
A personal view of notebooks can be found by reading more.
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Inventorship and Lab Notebooks
How many times have I reminded the scientists to keep proper notebooks, including witness signatures? Mostly I was ignored. Now along comes a case in the United States District Court in California that shows again the importance of good notebook habits. This time the notebooks were needed to evidence inventorship of an unnamed inventor on a patent. Evidence of inventorship needs to corroborated, and generally a putative inventor’s notebooks are insufficient corrobaration of testimony, at least where the notebooks are not witnessed.
Huang v California Institue of Technology, C.D. Cal., No. 03-1140 MRP, 17.02.04
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“Junk DNA” Patents of GTG
The so-called “junk DNA” patents are controversial, and the meaning of the claims is contentious. In this report, the claims of the United States patent are dissected and interpreted according to current U.S. patent law. As discussed, the patents disclose an invention that uses polymorphic sequences in non-coding regions to assess the presence of a polymorphism in an exon of a linked coding sequence. In contrast to the assertion that the patent claims all non-coding region polymorphism, the requirement in the claims for linkage of the two polymorphisms limits the scope of the patent.
Read the report here: simons_patents_analysisf.pdf
No tags for this post.New postings at cambiaIP resource web site
The cambia IP site has posted a new white paper (patent landscape analysis) on “Resistance to Phosphinothricin” as well as a new tutorial called “Can IP rights protect plants?“.
No tags for this post.Lack of Unity in Europe
European Union countries are supposed to have a uniform law concerning biotechnology inventions, including the patenting of plant inventions. The Directive is known as 98/44/EC. Even though the deadline for implementation has passed, so far, only thirteen Member States have thus far implemented the Directive: Greece, Sweden, Slovakia, Malta, the Czech Republic, Hungary, Poland, Spain, Denmark, Ireland, the United Kingdom, Portugal and Finland.
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