September 26th, 2017

Posted by Jordan Crook

 While many folks think of Yelp as a place to find a great place to eat, the company has been quietly infiltrating other categories. Home Services — stuff like plumbing, movers, mechanics, etc. — seem to be a booming business for Yelp, now representing 20 percent of the company’s overall revenue. So it only makes sense that Yelp has been tailoring features specifically for… Read More

Posted by Darrell Etherington

 Thai space startup mu Space will launch its first geostationary satellite with Jeff Bezos’ Blue Origin, the companies announced today at the International Astronautical Congress in Australia. Mu Space, founded by Northrop Grumman Corporation alum James Yenbamroong, will launch its first geostationary satellite with a target date of 2021, with the aim of helping provide space-based… Read More

Posted by Romain Dillet

 Plume Labs wants to be the definitive startup when it comes to air pollution. The company has built an app, an API and now an air quality tracker. The Flow is a tiny Bluetooth device you pair with your smartphone to learn more about the air you’re currently breathing. It works both inside and outside and could be particularly useful if you live in a polluted city. It tracks… Read More

Posted by Sarah Perez

 Amazon today is bringing Alexa to the Amazon Music app on iOS and Android, allowing listeners to use voice controls with their music. The feature is available in the U.S., U.K., Germany and Australia, the company says, and will let users do things like request a song, artist, or music for various activities or moods, like “road trips” or “running,” – the same as… Read More

Posted by Darrell Etherington

 Instagram is celebrating its milestone of reaching 800 million users on the platform, and 500 million using it daily, with new comment moderation tools that make it easier to silence anyone being potentially offensive. The new comment tools mean that if you have a public account on Instagram, you can limit comments to specific groups of people, including your followers or people you follow.… Read More

Posted by Jon Russell

 Just over a week after Equifax’s chief security officer and chief information officer “retired,” the bungling company’s CEO has made the same move after a huge data breach impacted over 140 million customers. The company announced that Richard Smith has left his role as CEO and chairman of the board effective immediately following a huge security breach which is… Read More

posted by [syndicated profile] in_the_pipeline_feed at 01:10pm on 26/09/2017

Posted by Derek Lowe

So now that Allergan has pioneered the technique of avoiding patent challenges by selling said patent rights to an Indian tribe, where do we go from here? There’s no way to take that one back; we’re now an industry where people do such things, lucky us. But is this going to be a feature of the patent landscape from now on?

Good question. Steve Usdin at Biocentury has what is the most comprehensive look at the issue I’ve seen, and there are several issues in play here. What Allergan is dodging, using the Mohawks as a shield, is the inter partes review process. This is not, as the Latin name might indicate, an ancient tradition in intellectual property law. It’s a process that’s only been around since 2012, and it’s a way to challenge the patentability of an issued patent. The scope is tightly defined – it’s only for challenges under Section 102 (novelty) and Section 103 (obviousness), and it specifically addresses published prior art (which are the grounds under which such challenges are often made, anyway). The first thing to ask is whether an Indian tribe has the sovereign immunity to do such a thing, and there opinion seems pretty firm: they do.

As Usdin points out, we actually have the University of Florida to thank for the beginnings of that idea. In Covidien LP v. University of Florida Research Foundation Inc., the university, as part of the state of Florida, successfully argued that its sovereign immunity protected it, under the Eleventh Amendment, from an IPR patent challenge. This move was then used by the University of Maryland, and no one outside the world of patent law batted an eye. The Indian tribe almost certainly has similar sovereign immunity, and if Maryland and Florida can get out of IPR, then so can they.

But that brings up the second question: can a sovereign entity sell such immunity to customers who want a piece of it? That seems a bit murkier, and may well be the subject of a challenge. I have no idea of the odds of success there, but I can only assume that Allergan’s lawyers (and the tribe’s) have thought about this issue already and written things in a manner that don’t make it obviously dismissible as a sham transaction. On the one hand, patent holders can sell their rights to whomever they please, on what terms they can get. But selling it to a sovereign entity because it’s a sovereign entity somehow seems different. “Somehow seems”, though, is no basis for law. Congress could, in theory, just pass a law to the effect that patents are exempt from sovereign immunity considerations, but Congress is having trouble tying its shoes these days (not necessarily a complaint), so that seems unlikely. And any such law would surely head up for an eventual Supreme Court hearing as well, to be honest.

But (in one of the most interesting parts of the Biocentury article) it appears that you can lose or waive such immunity:

. . .in 2002 the Supreme Court ruled in Lapides v. Board of Regents of University System of Georgia that “sovereign immunity can be waived when parties are consciously trying to manipulate litigation outcomes.”

In Lapides the Supreme Court was asked to consider a suit against the Georgia Board of Regents alleging that university officials violated state law when they placed allegations of sexual harassment in an employee’s personnel file. The state successfully petitioned to have the case transferred from state to federal court and then argued that the federal case should be dismissed because the state had sovereign immunity from such cases.

The Supreme Court ruled that when Georgia moved a case from state court to federal court it voluntarily invoked the federal court’s jurisdiction and, in the process, waived its sovereign immunity.

Did the St. Regis Mohawks step into the same trap when they asked the USPTO to dismiss the IPR? That argument will probably be tried out as well, and lawyers will be well paid to thrash that one out, you can be sure.

The widest question is the whole inter partes review process itself. The review is conducted not in a court, but by the Patent Trial and Appeal Board. And that’s where the arguing starts, because the worry is that the PTAB may not consider patent claims in the same way that courts do – how broadly do you interpret their language? The whole idea of having a non-judicial review of patent validity which cannot be in turn challenged in court is also an issue – and as it turns out, these very issues have been working their way through the courts themselves. There is a case coming before the Supreme Court (Oil States Energy Services LLC v. Greene’s Energy Group LLC) that argues that the entire IPR system is unconstitutional. (There are other issues with a case in Texas, which I won’t go into, but Biocentury has more).

It’s fair to say that the biopharma industry in general hates IPR, for the same reason that the generic companies love it: it makes patent challenges easier and more frequent. But you don’t see anyone poking their head up to defend Allergan in this one, either, because everyone also knows just how bad it looks to pull a maneuver like this. There’s a huge range of possible outcomes here, all the way from “IPR disappears from existence” to “everyone sells everything to Indian tribes at every opportunity”. Where we land on that scale is yet to be seen.


Note: All opinions, choices of topic, etc. are strictly my own – I don’t in any way speak for my employer

Posted by Ron Miller

 At Zoomtopia, Zoom’s very first user conference this week, the company announced a series of enhancements to its popular meeting software including the introduction of augmented reality meetings, automated intelligent transcripts and full integration with several partners including Slack and Workplace by Facebook. Let’s start with AR. While it’s a limited feature for now, it… Read More

Posted by Lucas Matney

 Though consumer VR is off to a slow start, many believe that location-based experiences could represent a more sustainable future for the industry, giving consumers higher-quality content in an experience that’s a lot more like going to see a movie. In fact, trying out VR at the movie theater is exactly what many startups are trying to get done.
Today, a VR startup called Dreamscape… Read More

Posted by Romain Dillet

 French startup Eligo Bioscience just raised $20 million to develop next-gen biotherapeutics. Khosla Ventures is leading the round. This is also Khosla Ventures’ first investment in a French startup. Existing investor Seventure Partners is also participating, and the startup received a $2 million grant from the Worldwide Innovation Challenge. Eligo Bioscience has been working on a new way… Read More

Posted by Katie Roof

 It’s no longer just a place to look up stock market data and company news. Yahoo Finance is now introducing trading directly via its app. With 75 million monthly active users, Yahoo Finance (our sister brand) has become a popular home for all things investing, other than investing itself. Now the group is introducing a partnership with TradeIt, which allows users to sync their… Read More

Posted by Sarah Perez

 Media player software maker Plex is today making good on its acquisition of streaming news startup Watchup from earlier this year with the integration of a dedicated news hub within its app. The feature delivers a way to browse and discover news from publishers worldwide, and introduces a personalized newscast that adapts to your interests based on what programming you watch and skip, among… Read More

Posted by Darrell Etherington

 Rocket Lab is a startup aiming to break new ground in the world of commercial space business: The company hopes to be the first in the world to regularly offer commercial orbital launches of small payloads from its own private launch facility, aboard its own private rockets. Now, it’s gearing up for its second ever test launch from its facility on the Māhia Peninsula in New Zealand… Read More

Posted by Darrell Etherington

 Elon Musk uses Twitter to express his thoughts frankly and directly, and he just took issue with a USA Today story about the size of a rival automaker’s bet on electric vehicle technology. Musk noted that the reported $1 billion Daimler was spending on taking on Tesla was not enough for such a large company – and Daimler agreed. In response to Musk’s tweet that the $1… Read More

Posted by Sarah Perez

 After abandoning its plans to launch a subscription video-on-demand business earlier this year, IAC-owned streaming video site Vimeo announced today that it’s acquiring the live video streaming platform, Livestream, and launching its own live streaming product, Vimeo Live. The move to integrate Livestream’s technology into Vimeo will allow video creators to capture, edit, stream… Read More

Posted by Ron Miller

 Splunk has always been data central for IT operations info, but as the logs fill up with ever-increasing amounts of data, it has become impossible for humans to keep up. Recognizing this, Splunk started building in machine learning and artificial intelligence last year, and this week they are enhancing those capabilities to make it easier to surface the data that’s most critical. The… Read More

Posted by Frederic Lardinois

 ProsperWorks, a service that offers a set of Google-centric CRM tools, today announced that it has raised a $53 million Series C round led by Norwest Venture Partners, with participation from GV (the fund you probably still remember as Google Ventures). This new round brings the company’s total funding to $87 million, which, in ProsperWorks’ own words, makes t the “#1 funded… Read More


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