On Monday, 13 May 2013, the Supreme Court of the United States unanimously held that patent exhaustion does not apply to second, third or nth generations of seeds. In an opinion authored by Justice Kagan, the court found that patent exhaustion does not apply to seeds because later generations constitute new copies of the invention.

On 1 May 2013, USTR released its 2013 Special 301 Report. Ukraine was put on the Priority Foreign Country list this year, a designation not used by USTR for several years. USTR's 2013 report spends more than six pages discussing China and two full pages on India. Below are some comments regarding this year's report.

Least Developed Countries

On 15 April 2013, the Supreme Court of the United States heard oral arguments in the case Association for Molecular Pathology, et. al., v. Myriad Genetics, et. al, hearing arguments over the question: are human genes patentable? The case, which has been litigated since 2009, specifically involves two genes, known as the BRCA1 and BRCA2 genes which are associated with an individual's susceptibility to breast and ovarian cancer.

On 28 March 2013, the EU-India FTA (BTiA) negotiating text was made available here. Below are some of my quick impressions on some portions of the negotiating text.

On Monday, 25 March 2013, the Supreme Court of the United States heard oral arguments in the case, Federal Trade Commission v. Actavis, Inc., et. al. This case had previously been captioned as Federal Trade Commission v. Watson Pharmaceuticals, et. al., but was recaptioned after the combination of Actavis and Watson. KEI filed an amicus brief in support of the FTC which is available here (along with additional background to the case).

The 16th round of negotiations for the Trans-Pacific Partnership Agreement (TPPA) took place at the Grand Copthorne Waterfront Hotel in Singapore in early March.

Today, 19 March 2013, the Supreme Court released its opinion in Kirtsaeng v. John Wiley & Sons, a case involving the parallel importation of copyrighted works. The case involved the petitioner, Kirtsaeng, purchasing textbooks in Thailand then reselling them in the United States. The Second Circuit held in this case that the first sale doctrine did not apply to foreign made goods, applying national exhaustion principles.

On Monday, March 18, 2013, the National Institutes of Health (NIH), held a conference call with the four NGOs that filed an October 25, 2012 march-in request for the patents held by Abbott Laboratories/AbbVie relevant to the manufacture and sale of ritonavir, a federally funded invention that is much more expensive in the United States than in Canada, Europe or other high-income countries, and is only available as a co-formulated product with AbbVie's version of lopinavir.

**Updated 19 March 2013, after the Supreme Court released its opinion in Kirtsaeng ruling to permit parallel importation of copyrighted works**

On Tuesday, 19 February 2013, the Supreme Court of the United States heard oral arguments in the case, Bowman v. Monsanto. This case involves the application of the patent exhaustion doctrine to self-replicating technology, in this case, seeds.

On Friday, 8 February 2013, KEI filed comments to USTR on the 2013 Special 301 Review. The comments request support for an extension of the transition period for least-developed countries, issues regarding compulsory licenses, patent linkage, exclusive rights over test data, and standards of patentability. With regard to copyright, KEI submitted comments covering issues of technological protection measures and DMCA-style legislation on notice-and-takedown procedures. KEI also made comments regarding the enforcement of intellectual property rights.

On Thursday, 31 January 2013, KEI filed an amicus brief to the Supreme Court of the United States in the case Association for Molecular Pathology, et. al. v. Myriad Genetics, Inc., et. al. Our full brief is available for download here.

Background

On Monday, 28 January 2013, KEI filed an amicus brief to the Supreme Court of the United States in the case Federal Trade Commission v. Watson Pharmaceuticals**. The case involves a question of whether pay-for-delay settlement agreements, also known as reverse payments (where a branded pharmaceutical company will pay a generic firm to stay off the market for a certain period of time), are per se legal or whether they are presumptively anticompetitive.

On Thursday, 10 January 2013, USPTO held a roundtable on genetic diagnostic testing. This roundtable followed up on the public hearing hosted by USPTO nearly a year ago (and the written comments submitted). The purpose of the public hearings last year was so that USPTO could gather information and viewpoints in advance of the report it was directed to write at the behest of Congress in the America Invents Act.

On 3 December 2012, the 15th round of negotiations on the Trans-Pacific Partnership Agreement (TPPA) began in Auckland, Newe Zealand and included, for the first time, eleven negotiating parties with the additions of Canada and Mexico more than a year after these two countries formally asked to join the negotiations. The current negotiating parties now include Australia, Brunei, Canada, Chile, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States, and Vietnam. Rumored interested countries include Japan, Thailand and South Korea.