IP Amicus Clinic Brief Goes to Supreme Court

Thanks to students in the Intellectual Property Amicus Clinic, Franklin Pierce Law Center has weighed in on the important Bilski v. Doll patent case now being petitioned to the Supreme Court.

Students Jason Condrasky, David Hardoon, Haimei Jiang, Yuliya Kleynbok, Christine Labbate, Ramani V. Marakani and Michael Whalen in the clinic began researching their amicus brief favoring the petition for writ of certiorari February 2.  With the guidance and assistance of Professors Jeff Hawley, Ann McCrackin, and Tom Field, they took it through many drafts and finally filed the brief in favor of certiorari March 2.  What was it about the case that made them commit copious hours to it in the midst of midterms and through their entire spring break?

2L David Hardoon explains the importance of the case, "After the Federal Circuit handed down the Bilski decision, the patentability of many modern technology areas was questioned.  The ramifications can be felt through many technology areas in patent law.  It changes the expansive scope of patentability from 'anything under the sun made by man' from the legislative history of the patent act and anything with a 'useful, concrete, and tangible result' which has been the test applied since the 90's to a more restrictive test that limits the areas that are deemed patentable.

"Our director and clinic members felt that the broad standard of patentability gave the United States a technological advantage over other parts of the world where they restrict what is patentable.  By offering exclusive rights where others do not, we felt that the constitutional mandate of the 'promotion of science and the useful arts' is satisfied."

Jason Condrasky, a 3L presently externing at MacCord Mason in Greensboro, NC, adds, "The Bilski opinion will be an opportunity to address significant public policy in patent practice, particularly in light of today's economic climate, where our industry's engineering and manufacturing are driven by the patent system."

As in any of Pierce Law's clinics, the students took on the bulk of hands-on legal work.   Hardoon explains, "With the help of faculty and staff, the Amicus Clinic researched, wrote, and edited a brief urging the Supreme Court to take on this important issue."  Since none of the students had written an amicus brief to the Supreme Court before, Professor Hawley, former president of the Intellectual Property Owners' Organization, used the student's research to write the first draft with input from Prof. McCrackin.  Students then picked up the editing and Bluebooking of subsequent drafts.

According to law blog "PatentlyO" other amicus briefs in Bilski v. Doll were filed by IP associations, businesses, and individuals.  Pierce Law was the only law school represented.  Clinic student and 2L Christine Labatte notes, "Not only was this a great opportunity to potentially influence patent law, but it's great knowing that I played a role in helping solidify the Pierce Law image in the Intellectual Property world."