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Structure or Function? AbbVie Deutschland GmbH & Co. v. Janssen Biotech, Inc. and the Federal Circuit’s Structure-Function Analysis of Functionally Defined Genus Claims Under Section 112’s Written Description Requirement


by February 21, 2015 CAFC2

I. Introduction

On July 1, 2014, in AbbVie Deutschland GmbH & Co. v. Janssen Biotech, Inc.,
 
In light of the court’s express skepticism regarding functionally defined genus claims, my expectation is that challenges to the validity of these types of patents on written description grounds will continue to grow. And, generally speaking, I think that is a good thing. Allowing patentees to claim a broad genus without appropriately disclosing species sufficient to support those claims almost certainly gives rise to undeserved patent protection on inventions that simply were never invented. Indeed, such a grant is at odds with the very purpose of the patent laws—a patentee should not be granted a monopoly on an invention he or she has yet to invent or fails to appropriately disclose to the public. I also believe the decision could be a boon for pharmaceutical innovation. As these broad patents begin to fall, I expect that pharmaceutical manufacturers will have a greater incentive to innovate in various areas of biological science that until now fell within the scope of broad, functionally defined genus claims of various biological-science patents.

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Academic Conferences: When Small is Beautiful


by February 21, 2015

Reflections on organizing an academic gathering easily risk becoming a navel-gazing exercise, and not a very interesting one at that. Those risks notwithstanding, I wish to use the occasion of an April 2014 program at Suffolk University Law School to champion the virtues of smaller academic events that promote genuine dialogue and move at a slower, more contemplative pace. Although I do not promise that I will offer anything especially profound here, this may plant a seed in others to develop similar programs and even have some fun in the process.
 

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The Solemn Moment: Expanding Therapeutic Jurisprudence Throughout Estate Planning


by February 21, 2015

“With the check written but not yet signed, he swiveled back in his desk chair and seemed to ponder. The agent, a stocky, somewhat bald, rather informal man named Bob Johnson, hoped his client wasn’t having last-minute doubts. Herb was hardheaded, a slow man to make a deal; Johnson had worked over a year to clinch this sale. But, no, his customer was merely experiencing what Johnson called the Solemn Moment—a phenomenon familiar to insurance salesmen. The mood of a man insuring his life is not unlike that of a man signing his will; thoughts of mortality must occur.”
 
In the above excerpt from his true-life crime thriller, In Cold Blood, Truman Capote touches upon two important insights regarding estate planning. The first is the connection between the traditional estate planning tool of the will and newer modes of posthumous wealth transmission, such as life insurance. Capote’s second important insight is the connection between estate planning and mortality. Putting one’s affairs in order, whether through the execution of a will or the purchase of a life insurance policy, places death at the forefront of one’s mind.
 

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Teaching TJ: Therapeutic Jurisprudence for Law Students


by February 21, 2015

Why shouldn’t law school introduce its students to modern, cutting edge theories, concepts, and practical skills? Teaching therapeutic jurisprudence (TJ) to law students accomplishes this goal by exposing students to innovative perspectives that demand rigorous application of one’s knowledge and values in a creative problem-solving approach. TJ does not promote the practice of psychotherapy by untrained or unqualified personnel; rather it seeks to educate lawyers, judges, legal personnel, and law students to use the law in a manner helpful to individuals and society as a whole.
 

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Legal Writing, Therapeutic Jurisprudence, and Professionalism


by February 21, 2015

“Professionalism as a personal characteristic is revealed in an attitude and approach to an occupation that is commonly characterized by intelligence, integrity, maturity, and thoughtfulness.”
 
“Words are the principal tool of lawyers and judges, whether we like it or not.”
 
The quotes above refer to two quintessential aspects of lawyers’ work. First, as members of a self-regulated profession, we must aspire to a level of professionalism that is characterized by intelligence, maturity, and thoughtfulness. Second, regardless of the tasks we undertake, words are critically important to lawyers. Not only must we be able to conduct comprehensive and coherent legal analysis; our ability to serve clients properly depends on effectively translating the analysis into words—both spoken and written.
 

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“There’s A Dyin’ Voice Within Me Reaching Out Somewhere:” How TJ Can Bring Voice to the Teaching of Mental Disability Law and Criminal Law


by February 21, 2015

In this short essay, I will discuss my historical involvement with therapeutic jurisprudence (TJ), how I use it in my classes (both in the free-standing TJ class and in all the others that I teach), its role in my written scholarship, and its role in conferences that I regularly attend. Although this will all be positive and will certainly be supportive of all efforts to widen the appeal of TJ as well as its applicability in the classroom, in scholarship, and in “real life,” I will also be sharing some information that is far from optimistic with regard to how law students and teachers react to TJ. I am deeply saddened by this but feel that this must also be “on the table” in any reflective conversation about TJ.
 

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