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ACLU and patent law May 19, 2009

Posted by Brian Schar in General.
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I have been a member of the ACLU for several years, since the issues of the Military Commissions Act and torture first appeared on our legal landscape.  While I broadly support the ideals of the ACLU, I certainly do not agree with the organization on every issue.  For example, I was surprised to find the ACLU essentially joining the Infringer’s Lobby in a recently-filed complaint.  Broadly speaking, the complaint argues – contrary to settled law – that claims to human genes violate 35 USC 101 and the First Amendment (don’t ask).  The complaint seeks, among other relief, the invalidation of numerous claims in several patents.

Post-Medimmune and Sandisk, the bar for filing a declaratory judgment action has been reset very low.  Nevertheless, the bar is still there.  A plaintiff must have standing to file a declaratory judgment action for the invalidity of a patent claim, just as in any other case.  Sadly for the ACLU, their attorneys seem to have forgotten all about standing.  The complaint fails to allege that any of the plaintiffs are practicing the claimed invention, or have received any letters or other communication from the defendant relating to licensing or enforcement activity.  The common thread among all the plaintiffs is that all of them would like to infringe the valid claims at issue.  That generalized grievance is simply not enough for standing.  Without standing, the plaintiffs can’t reach the invalidity issue, much less the supposed First Amendment issue.

In my view, this complaint will be quickly disposed of by a Rule 11 motion.  The ACLU should stick to its historic mission of supporting and defending the Constitution (which provides for the grant of patents), and stay out of this area of law in which it obviously has no expertise.

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