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  Stanford v. Roche at high court on Monday
  25 Ҿѹ 2554

Date: 25 February 2011


Patent licensing is complicated, and a new chapter of that complexity, as it applies to universities and other federal contractors through the Bayh-Dole Technology Transfer Act, will hit the Supreme Court on Monday.

The court will hear oral argument in Stanford v. Roche, the case that MIT had submitted an amicus curiae (friend-of-the-court) brief in last year. MIT supported Stanford.

Solicitor General Neal Kumar Katyal will also present argument in support of Stanfords case before the court on Monday. Katyal has also filed an amicus brief supporting Stanford.

The case revolves around whether a Stanford AIDS researcher, Mark Holodniy, was able to sign away Stanfords patent rights to a PCR- based AIDS assay when he signed a Visitors Confidentiality Agreement while serving as a visiting scientist at Cetus, a local biotechnology company later purchased by Roche.

Stanford argues that Holodniys ability to sign away Stanfords rights is constrained by the Bayh-Dole Act, a 1980 statute that changed the way federally-funded inventions could be privatized. Prior to Bayh-Dole, the process by which inventions arising from federally funded research was unclear, complicated, and different for each agency. Bayh-Dole set up a more efficient process for technology transfer to private industry.

Roche argues that Holodniys signed statement that I do hereby assign his work changed the way those rights transfer.

Columbia University Law Professor Ronald J. Mann, writing on SCOTUSblog, predicts that the language of the Patent Act will factor against Stanford strongly, and that the Solicitor General will face a tough time at oral argument. The Patent Act gives patent rights to human inventors, not to companies, and the Bayh-Dole Act concerns applications to government contractors, not to people.

In addition to the briefs from the parties in the case, there have been numerous amicus briefs, including 13 at the current stage of argument. When The Tech reviewed the eight briefs available in early January, they were all in favor of Stanford side. Several of the amicus briefs since filed are on Roches side, and in his analysis, Mann suggests that the case could easily go either way.

Keywords: Roche / Patents / Licensing / Bayh-Dole Act