The Cross-Border Biotech Blog

Biotechnology, Health and Business in Canada, the United States and Worldwide

Monthly Archives: June 2009

Patent Licenses Litigated Lately: Transcore v. ETC and Euclid Chemical v. Vector Corrosion

Horton CropAs a corporate lawyer, I always aim to not wind up facing the pointy end of a deposition.

Here are two object lessons courtesy of the U.S. Court of Appeals for the Federal Circuit:

TransCore, LP v. Electronic Transaction Consultants Corp. (pdf)

TransCore deals with the doctrine of patent exhaustion — that when a customer purchases a patented item in an authorized sale, the owner of the patent has no rights against the purchaser or anyone downstream.  Two of my U of C classmates, Dennis Crouch at PatentlyO, and Shira Kapplin at Kirland & Ellis (pdf), have written about this case in much more detail (so you should click those links … hi guys!); but the gist is that the Federal Circuit rejects any distinction in a settlement agreement between a “covenant not to sue” and a “patent license.”

The two are functionally the same but there was a school of thought that maintained that the doctrine of exhaustion did not apply in the case of a “covenant not to sue” since the sales weren’t actually “authorized.”  No dice.

Euclid Chemical v. Vector Corrosion (pdf)

Another Federal Circuit case picked up by Dennis deals with contract ambiguity.  The majority of the court held that a 2001 assignment of patent rights from Bennett to Vector was ambiguous as to whether it included a specific patent — U.S. Patent No. 6,217,742 — that a third party, Euclid, claims it had later purchased from Bennett.  The ambiguity arose because the ‘742 patent was already issued at the time of the license, and was within the catch-all language of the license, but was excluded from the express list of licensed patents and applications.  The court remanded the case for consideration of extrinsic evidence in light of its holding that the contract was ambiguous.

My bottom line in both cases:  If you meant what you said and said what you meant, the courts will be faithful one hundred percent. (Thanks and apologies to Dr. Seuss and Horton.)

Ontario H1N1 Swine Flu Update June 3: Two Deaths, 894 Total Cases

B&W_AntigenicShift_HiResCropCoverage of Swine Flu has declined, but incidence of Swine Flu has not.  Yesterday, we got the report of a second swine flu-related death in Ontario. 

Although the press release goes out of it’s way to emphasize that almost all the cases are considered mild, there is an interesting tidbit here:

Six people who have the H1N1 flu virus were in hospital as of June 2, a number of whom have underlying medical conditions.

… implying that at least some of those hospitalized do not have underlying medical conditions — i.e., they actually have a fairly severe case of flu.

Also, swine flu is on the rise in the Southern hemisphere and WHO is seriously considering moving to level 6, but may add some kind of severity indicator.

Here’s the Ontario data:

Ontario Swine Flu cases June 3

what’s that word again? Oh, right … exponential.  Here’s the new case average count, which I’ve moved to a 7-day rolling average:

Ontario Swine Flu cases Average June 3

Keep carrying that sanitizer a little longer, I think.

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MRI RFP ISO for Emerging Technology Fun(d)

Ontario LogoOntario’s Ministry of Research and Innovation has put out an RFP for the new $250 million Emerging Technologies Fund.

They are looking for someone to evaluate co-investor and investment applications, and to administer and monitor investments for the fund.

Here’s the blurb from the RFP Abstract:

The OETF is a new $250 million program announced as part of Ontario’s 2009 Budget that would invest $250 million dollars over five years together with qualified venture capital funds and other private sector investors. This initiative is designed to help Ontario respond to the challenges emerging technology companies are experiencing in raising venture capital and other private equity. The Fund will focus on clean technologies, health and life sciences, and information and communication technologies, including digital media. The goal of the fund is to co-invest in high growth, innovative Ontario technology companies, with OETF as a co-investor. The RFP will enable MRI to retain the necessary external experts to support MRI in evaluating co-investors and co-investments, and in administering and monitoring these investments.

The final date for receiving written questions is June 10, 2009, 4:00 p.m.

Final Addenda will be issued by June 16, 2009, 4:00 p.m.

Optional Proponents Briefing will be held on June 12, 2009, 10:00 a.m.

Proposals must be received before 2:00 p.m. on June 24, 2009.

Read the full RFP at MERX.

Women in Math and Technology: Biological Equals

SexEqualityTwo stories over the last couple of days, one statistical, one anecdotal, seem worth mentioning as proof of not only how wrong, but how insidiously harmful, Larry Summers’ 2005 comments about women in math were.

Let’s start (appropriately enough) with the statistics. A PNAS paper this week by Janet Hyde and Janet Mertz in Madison, Wisconsin thoroughly debunks the Summers hypothesis. They looked at international data on women in math: those who score above the 95th or 99th percentile and those who are “profoundly gifted” mathematicians.

Their insight was that if achievement at a high level was biologically determined, the gender gap would be universal. In fact, they found that in both top categories, some groups in some jurisdictions show no male-female difference in achievement. Moreover, the presence of a gap “correlates with several measures of gender inequality,” indicating that differential achievement “is largely an artifact of changeable sociocultural factors.”

As Malcolm Gladwell says in “Outliers“:

“It is not the brightest who succeed … Nor is success simply the sum of the decisions and efforts we make on our own behalf. It is, rather, a gift. Outliers are those who have been given opportunities — and who have had the strength and presence of mind to seize them.”

The second story this week highlights Dame Wendy Hall, an Outlier herself who is a Professor of Computer Science in the UK.  How many more women like Dame Hall would we would have in academia and business if Summers and others had given them opportunities at key moments?

What Summers exemplified, and what Gladwell, Hyde and Mertz prove, is that we are doing ourselves out of not just brilliant mathematicians, but brilliant CFOs, principal investigators and other leaders who sit firmly at the top of the natural talent pool but are discouraged, or denied opportunities to exploit their skills.  What a waste.

Update: an interesting powerpoint deck shows life sciences in general, and biotechs in particular, doing better than most; but still far from perfect.

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New MaRS Innovation CEO Rafi Hofstein Will Lead Products to the Promised Land

B&W_rafi_hofsteinRafi Hofstein has joined MaRS Innovation as its new CEO.  He was previously the President and CEO of Hadasit Ltd., the technology transfer company of the Hadassah Medical Organization in Jerusalem, and since 2005, Chair of Hadasit BioHolding Ltd. (TASE: HBL).  In this role, he oversaw:

the commercialization of intellectual property emerging from the Hadassah Medical Organization, clinical trials with industry partners, as well as the launch, development and strategic oversight of a series of medical devices, biomedicine and diagnostic equipment spin-off companies.

He has Ag experience too, having been the Vice President Business Development for Ecogen, Inc., a subsidiary of Monsanto.  He was also at the helm of Mindsense Biosystems, and has his Ph.D. from Weizmann.

Well, Dr. Hofstein, welcome to Canada and to our little University Avenue (and Bay Street) slice of innovation heaven.

For those who aren’t in the know, here’s the scoop on MaRS Innovation:

MaRS Innovation provides an integrated commercialization platform that harnesses the economic potential of the exceptional discovery pipeline of 14 leading Toronto academic institutions.  MaRS Innovation is a non-profit organization with an independent industry-led Board of Directors, funded through the Government of Canada’s CECR Program and contributions of its member institutions, as well as support from the Province of Ontario.

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Monday Deal Review: June 1, 2009

B&W_BigNickelLooks like most people were too busy at ASCO to make new deals, but there was a bit of Canadian activity this week. Read on after the jump…

He Loves Me, He Loves Me Not: CSL Gets Mixed Messages from Uncle Sam

Godward-He_Loves_Me%2C_He_Loves_Me_Not-1896Last week, CSL heard from the Federal Trade Commission that the agency is opposed to CSL’s proposed $3.1 billion merger with Talecris Biotherapeutics.

Don’t worry, CSL, Health and Human Services still loves you.  To the tune of a $180 million order for CSL’s H1N1 swine flu vaccine bulk antigen.  HHS will also fund the clinical trials.

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