Tweet tweet! Not so fast! Copyright Issues Ahead!

In a case involving reuse by a number of media outlets of a link to a photo of Tom Brady taken and posted to Snapchat by a private plaintiff and reposted to Twitter, the District Court  for  the  Southern  District  of  New York,  has  raised  a  serious  question  about  the propriety of publishing a link to someone else’s content.

While the case is still at the preliminary stage and at this point is not binding precedent in any jurisdiction, it should still give pause to those seeking to freely include links in their publications. The court has ruled that such practice, may, but will not necessarily, be the basis for a copyright infringement claim by the party who originally posted the material online, whether on Snapchat, Twitter or elsewhere.

While the court expressly acknowledged the potential availability to those including the link of various legal defenses such as fair use and the Digital Millennium Copyright Act service provider safe harbor, which we have previously discussed in these pages, it made clear that there is no per se permission for inclusion of a link. The latter conclusion is contrary to the supposed conventional wisdom that there was no issue with such linking.

While acknowledging the difficulty presented in the application of copyright law dating back to 1976 and before to today’s technology and media platforms, it also pointed to the decision of the US Supreme Court in the Aereo case, also discussed by us, for the proposition that differences in technical configuration and approach from an infringing practice will not, of themselves, save the alternative practice.

At heart, the Court’s holding eschewed the notion that Aereo should be absolved of liability based upon purely technical distinctions—in the end, Aereo was held to have transmitted the performances, despite its argument that it was the user clicking a button, and not any volitional act of Aereo itself, that did the performing.

Whether one is originally publishing online content or seeking to reuse that published by someone else, even with attribution, they should be mindful of this case as it wends its way through the courts and as the issue is taken up by other courts. In the first instance, it is probably most practical to determine whether the linking is protected by a fair use defense, which encompasses  considerations such as, but not limited to, the amount of the original material which is reused, whether or not such use is commercial and whether there is a creative rationale, such as a critique for the reuse.

Evolving Patenting Strategies for Gene-Based Inventions: Spotlight on the United States vs. Australia

In a recent decision, The Federal Court of Australia held that a method of using gene sequence analysis to identify beneficial traits in cattle was patentable (Meat & Livestock Australia Limited v. Cargill, Inc. ([2018] FCA 51)(“MLA”)).   The MLA case highlights increasingly divergent approaches to the issue of patentable subject matter between Australia and the U.S. when it comes to certain life sciences inventions.

Over the past 5 years, the highest courts in both the U.S. and Australia have reviewed patents owned by Myriad Genetics with claims to isolated naturally occurring DNA sequences (Association for Molecular Pathology v. Myriad Genetics, (U.S. Myriad”); D'Arcy v Myriad Genetics Inc. ([2015] (“Australian Myriad”).   In both cases, the Courts held that naturally occurring nucleic acid molecules that have merely been isolated from surrounding genetic material are not patentable.

However, the Courts differed in how they reached their decisions.  The High Court of Australia focused more on comparing the information embodied by the claimed DNA and the naturally occurring DNA.  In contrast, the U.S. Supreme Court focused more on comparing the physical molecules of the claimed DNA and the naturally occurring DNA (i.e., the specific nucleic acid sequences of the two DNA molecules).

This difference in analysis led to a discrepancy in how each Court dealt with complementary DNA (“cDNA”).   cDNA is synthetically created and leaves out portions of the naturally occurring sequence that do not code for proteins. The U.S. Supreme Court held that cDNA is eligible for patenting because it has a different nucleic acid sequence than the naturally occurring gene. Conversely, the High Court of Australia held that cDNA is not eligible for patenting because the genetic information encoded by both molecules is the same.

The U.S. Patent & Trademark Office has extended the U.S. Supreme Court’s decision to consider naturally occurring proteins and microorganisms that have only been isolated from their natural environments as unpatentable.  Subsequent cases in the U.S. have also held that diagnostic methods based on the correlation of a disease or condition with naturally occurring biomarkers such as genes or proteins are unpatentable without “something more” (Mayo Collaborative Services v. Prometheus Laboratories, Inc. (Mayo”); Ariosa Diagnostics Inc. v. Sequenom, Inc. (Fed Cir. 2015)(“U.S. Sequenom”).  The “something more” can be, e.g., the inclusion of a novel apparatus, a novel non-naturally occurring reagent, or a novel treatment.

In Australia, isolated naturally occurring proteins and microorganisms remain patentable.   The MLA case indicates that, in general, claims directed to the practical application of gene sequences, including methods of genetic screening, are also patentable.  MLA also potentially foreshadows how the Federal Court of Australia will decide the Australian counterpart to the U.S. Sequenom case, which has currently been set down before the Court for August 2018.

So what does this mean for U.S. life sciences companies pursuing global patent portfolios?  The divergence in the law between Australia and the U.S. serves as a reminder that case law and patent office policies vary from country to country. For U.S. patent applicants it is important to remember that broader protection may be available outside of the U.S. and it is wise to include claims of varying scope in your patent applications.   This provides the flexibility to pursue broader claims where they are available while allowing for the presentation of claims in the U.S. that include additional elements as described above. It is alsoimportant to work closely with patent counsel to monitor the shifting sands in this legal area and adjust global patent strategies accordingly.