JOLT Digest

By Sonia McNeil

Myriad Genetics Appeals Ruling on Patentability of Isolated Genes

Myriad Genetics has appealed the Southern District of New York’s ruling in Association for Molecular Pathology v. USPTO. The district court invalidated seven Myriad Genetics patents relating to the human Breast Cancer Susceptibility Genes 1 and 2 (collectively, “BRCA1/2”), finding that the claimed isolated DNA is not markedly different from native DNA as it exists in nature and therefore constituted unpatentable subject matter under 35 U.S.C. § 101.  On appeal, Myriad Genetics argues (1) that the district court lacked declaratory judgment jurisdiction, and (2) that its composition and method claims cover patent-eligible subject matter.  PatentlyO predicts that the Court of Appeals for the Federal Circuit will reverse the lower court; other commentators expect appeal to the U.S. Supreme Court to follow.

Third Circuit to Consider Constitutionality of Routine DNA Collection from Arrestees

The Third Circuit has scheduled en banc reargument of the Justice Department’s appeal in United States v. Mitchell.  Mitchell considered the constitutionality of requiring a defendant to submit a DNA sample for analysis and inclusion in a law enforcement database.  Finding “no compelling reason to unduly burden a legitimate expectation of privacy and extend these warrantless, suspicionless searches to those members of society who have not been convicted, but have been arrested and are awaiting proper trial,” the district court held the regulation invalid under the Fourth Amendment. Describing the April oral argument of the appeal, Law.com notes that the Justice Department highlighted statutory safeguards preventing use of the DNA beyond identification, while Mitchell’s attorney argued that the law’s real goal is to expand the DNA database in order to investigate other crimes and to link suspects to evidence in unsolved cases.

Rotterdam Promotes DNA Mist as Aid to Crime Deterrence and Detection

The New York Times reports that the city of Rotterdam, the Netherlands, is promoting the use of a new DNA mist in an effort to deter robberies.  When triggered, the system alerts law enforcement and sprays a fine liquid mist of synthetic DNA carrying markers unique to the location and visible under ultraviolet light.  Although Rotterdam has not yet made an arrest based on DNA mist evidence, law enforcement and shop owners credit the presence of signs warning, “You Steal, You’re Marked” with anecdotally declining crime rates.

Supreme Court Holds That a Government Employer’s Search of an Employee’s Messages on a Work-Related Pager Was Reasonable and Not a Violation of the Fourth Amendment
By Andrew Segna – Edited by Helen He

Ontario v. Quon, No. 08-1332 (U.S. Jun. 17, 2010)
Slip Opinion

The United States Supreme Court reversed a Ninth Circuit Court of Appeals decision that held that the Petitioner City of Ontario’s (“Ontario”) search of the Respondent Jeff Quon’s text messages was unreasonable and, therefore, a violation of Quan’s reasonable expectation of privacy under the Fourth Amendment.

The Supreme Court held that the search administered by the Petitioner was reasonable and did not violate the Respondent’s Fourth Amendment rights regarding government employers. To reach this conclusion, Justice Kennedy assumed that Quon did have a reasonable expectation of privacy. Under the standards outlined by the plurality and Justice Scalia’s concurrence in O’Connor v. Ortega, the Supreme Court held that the legitimacy of the City’s reasoning behind the search and the nonexcessive measures utilized demonstrated reasonableness. In so holding, Justice Kennedy recognized  this decision’s potential to determine the larger question surrounding employees’ expectation of privacy with regards to government employers and the rapid growth of information and communication technology today. Kennedy mentioned the changing privacy expectations of employees and arguments for and against increased privacy but asserted that he wanted to avoid the volatile and far-reaching consequence of addressing such an issue. Therefore, he concluded that there was a reasonable expectation of privacy in this case in order to narrow the holding.

The New York Times has an overview of the Supreme Court’s decision. SCOTUSBlog analyzed the majority opinion and Justice Scalia’s concurrence in the case and their implications for the question of privacy in the realm of technology. The Electronic Frontier Foundation, who filed an amicus brief in favor of a narrow holding, elaborated upon its support for and concerns about the holding. (more…)

By Kassity Liu

India’s Stringent Patentability Standards Cause Corporate Dissatisfaction

On February 12, the WSJ Law Blog reported that India’s standards for patentability may be leading to a lack of significant patent protection for important pharmaceutical drugs. Before 2005, India offered patent protection to processes for making pharmaceutical drugs, but no protection to the products themselves. After the patent system was extended to cover the products, a large number of multinational drug companies began to market their products in India. However, as time passed, many companies became dissatisfied as they found that the new laws were not as protective as the U.S. and Europe. The WSJ post notes several examples of inadequate protection, including the recent Deli High Court’s refusal to ban a competitor’s copy of Bayer’s cancer drug Nexovar. However, one executive of an Indian generic drug manufacturer favors India’s high standard for patentability, claiming that “[t]he U.S. would grant a patent to a piece of toilet paper.”

FBI Challenges Probable Cause Standard for Cell-Phone Data

On February 11, the WSJ Law Blog reported that Third Circuit panel in Philadelphia was set to hear an appeal on February 12 of a lower court decision denying the government’s request to access cell phone records without probable cause. Newsweek’s Michael Isikoff reports that the FBI has increasingly been obtaining cell-phone records for criminal investigations without a showing of probable cause. Advocacy organizations such as the Electronic Frontier Foundation and ACLU support the probable cause standard, and argue that Fourth Amendment requires the government to “show that it has good reason to think such tracking will turn up evidence of a crime” before it can pull private cell-phone data. However, the government believes that the Fourth Amendment does not protect cell-phone data which they consider to be “routine business records.”

P2P File-Swapper Thomas-Rasset Set to Face Third Jury Trial

On February 9, Ars Technica reported that Jammie Thomas-Rasset is set to face a third trial on the issue of damages. In her last trial, a jury returned a $1.92 million verdict against Thomas-Rasset, which the judge reduced to $54,000 on remittitur. The RIAA refused to accept the new award out of concern that the judgment would effectively cap statutory damages for individuals who illegally download and upload music to $2,250 per song. The new trial comes as a surprise to many, since the amount of damages is the only issue at stake, and the judge has already held that anything over $54,000 would be excessive.

By Dr. Jur. Eric Engle, LLM[i]
Edited by Gary Pong
Editorial Policy

New technologies have made types of searches possible which could never have been envisioned when the Fourth Amendment was proposed to prohibit unreasonable search and seizure. With remote listening, infrared imaging, and, now, wireless technologies, it is possible to detect movements of people within buildings with no discernible physical impact on the surveilled person’s life.[ii] Are remote searches reasonable? Do they require a warrant?[iii] In my opinion, courts should treat these sorts of remote detection techniques (“surveillance”) as searches subject to the Fourth Amendment’s requirement of reasonableness.

The Fourth Amendment to the U.S. Constitution expressly guaranties that:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Fourth Amendment was incorporated by the Fourteenth Amendment to apply directly to the states, even though many protections against search and seizure at state common law were more extensive than the Fourth Amendment.[iv] The general rule is that the Fourth Amendment’s prohibition of unwarranted searches does not apply where there is no reasonable expectation of privacy.[v] That leads to the question of when a person has reason to believe that he or she is “in private” as opposed to “in public”. This will depend both on the facts of the case and on social reality.[vi] For example, different cultures within the United States have different senses of what is “public” and what is “private”, and those senses are constantly evolving.[vii] However, one bright line stands out: searches of homes without warrants are presumptively unreasonable because “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” [viii] (more…)

Court Suppresses Email Evidence in Bear Sterns Case
By Stuart K. Tubis – Edited by Jad Mills

U.S. v. Cioffi, et al., Case No. 08-CR-415 (FB) (E.D.N.Y. Oct. 26, 2009)
Slip Opinion (hosted by WSJ)

The Eastern District of New York granted defendant Matthew Tannin’s motion to suppress evidence obtained from his personal Gmail account. Ralph Cioffi and Matthew Tannin were charged with conspiracy, securities fraud and wire fraud in connection with their roles as Bear Sterns hedge fund managers. Prosecutors obtained a warrant to search Tannin’s personal Gmail account, but the warrant failed to specify what evidence could be seized or to what crimes the evidence must relate.  After some initial difficulty, Google delivered a copy of the email account to the Government. As the Wall Street Journal reported, one email contained a comment that funds Tannin managed could “blow up.” Tannin moved to suppress this evidence on the ground that it violated the Fourth Amendment.

District Judge Block held that the warrant was facially overbroad and thus violated the Fourth Amendment. The Court reasoned that because the warrant itself was not particular as to either the items to be seized or to a particular crime, and because the affidavit was not attached or incorporated into the warrant, the warrant was unconstitutional. The court also held that the warrant did not merit a “good faith” or “inevitable discovery” exception, largely because the executing officers should have known the warrant was overbroad.

The Wall Street Journal provides a brief overview of the case. The Eric Goldman Blog also provides a summary of the case. Orin Kerr of the Volokh Conspiracy criticizes the ruling, saying that the good faith exception should have been granted since the case law was not firmly established at the time of execution. (more…)