No matter how wonderful a boss you are or how successful your company is, sooner or later you are going to have to fire employees. Between federal, state and sometimes even local employment laws, navigating through the legal pitfalls of losing bad or sour employees can be tricky. Here are the absolute best ways to shed your dead weight and stay on the right side of the law.

• Document Everything Properly – Detailed, consistent documentation can defeat many claims of defamation, discrimination, liability for hourly wages, and wrongful discharge. If you have to fire an employee, in court great documentation shows a pattern of clear expectations on your part and repeat failures on your employee’s part.
• Warnings: An employee file that illustrates a history of an employee’s receipt of appropriate discipline belies a claim of unfair treatment and lack of warning concerning bad performance and termination. This “paper trail” of warnings must include verbal, written, and final warnings.
• Reviews: Every employee should receive accurate performance reviews on a regular schedule. If an employee’s performance is lacking, don’t give them a neutral or positive review no matter how much you like them. Their review must accurately reflect their performance.

Make Your Policy Manual Work For You (Not Against You) – Don’t just hijack someone else’s policy manual off the Internet. And wherever you got it, take steps to improve that manual now:

• Disclaimer: Place a clear disclaimer front and center that explains the policy manual is not a contract of employment. This means that none of the provisions in the manual constitute binding commitments that you or the company could breach.
• At-will employment: If you are in an “at-will” employment state, that at-will relationship is your best defense in a wrongful termination lawsuit. Strengthen the documentation of that at-will relationship wherever you can in the manual. Here are some examples of how to do that:

Affirm each party’s right to terminate the employment at will, with or without notice;

Affirm your right to change the conditions at-will employment;

State that no one in your company may represent anything contrary at an “at-will” relationship except in a formal written employment agreement contract signed by a designated officer. Put employees on notice that they must report any unauthorized promises or representations contrary to the “at-will” relationship.

Reaffirm the “at-will” relationship anyplace that this might become confusing, like where there is a probationary period or grievance procedures. Remind the employee that the presence of those benefits does not change the “at-will” relationship and that you have the right to fire employees at any time.

• Watch your language: Get rid of all unnecessary language. Don’t say anything without a strong justification. Change all the “employer shall”s and “employer will”s to “employer may”s. Remove anything that could possible be taken for a promise.

Use an Annual Written Acknowledgment – A good acknowledgment covers receipt of the employee manual, the at-will employment relationship, the lack of any promises of tenure or advancement, the lack of uncompensated overtime, the amount of any accumulated leave, and the lack of any discrimination or harassment. It directs the employee not to sign unless it is completely accurate. Signing of the acknowledgement indicates that the employee has read and understood both the manual itself and his duties set forth by it. Finally, the signed acknowledgment affirms that the employee has not witnesses or experienced any kind of harassment or discrimination while employed at the company other than any already formally reported.

Make Sure the Firing Process is Standardized and Fair – If you want to make sure that you appear neutral and nondiscriminatory when you fire employees, ensure you have safeguards in place:

• Consistency: If one employee receives a written warning for lying, don’t fire the next employee who does the same thing. Treating employees inconsistently opens you up to charges of discrimination.
• Don’t be emotional: Never fire someone “off the cuff.” Rash, emotional decisions come from an unprofessional place and can result in negative outcomes for the company. When you do decide you must fire employees, wait at least 24 hours before you announce the change. Make absolutely sure.
• Don’t lie: If you lie about the reason for firing an employee and they sue, it is much easier for a jury to think that discrimination must have been on your mind. it may seem easier to tell someone that their job is being eliminated, for example, than that you find them unreliable. However, if that employee later proves that her job was not eliminated, it’s you who seems unreliable, not to mention untrustworthy, and you’ve lost your strong position.
• Don’t be defamatory: Of course while you shouldn’t lie about the reason, don’t go too far. It is one thing to point out that your employee has a record of being tardy and is therefore unreliable. It is not safe, though, to say that they are out and out incompetent generally. Don’t open yourself up to defamation claims.

Conduct a Proper Termination Meeting – Even if you’ve done everything else right, you can scuttle your efforts if you don’t deliver the bad news in the right way.

• Be there: Termination meetings should always be face to face.
• Use witnesses: Termination meetings should always take place in front of at least one witness who is also a member of the staff, and preferably two or more. Upper management are the best choices for witness roles. Peers of the person getting fired can feel uncomfortable and can make the process even harder for the employee.
• Keep a record of the meeting: It is best to record the termination meeting. Whether or not it is recorded it is also best to keep detailed notes.
• Be brief: Keep to the point. Don’t ramble on, argue, or get personal. Be polite and respectful.

Nothing can guarantee that your company never gets sued after firing employees. However, if you follow these procedures, you will minimize your risk as you minimize the bad feelings associated with the process.

High-Tech Rivalry

Apple vs. Samsung is essentially a huge global he-said-she-said involving billions of dollars and a veritable monopoly over the smartphone and tablet industries. According to Wikipedia, Apple and Samsung dominate over half of the global smartphone market. It’s no secret that these two tech titans are trying to push one another out of as many countries as possible. If one can put the other out of business in the U.S., even for a little while, the financial implications would be astronomical.

Ironically enough, Apple and Samsung started out with a symbiotic relationship. Samsung is still a major supplier of semiconductors for Apple; Samsung-produced semiconductors are inside 25 million Apple devices that were sold this year, Mashable says. As court proceedings get nastier, though, rumor has it that Apple is looking for another supplier.

International Legal Cases

Apple and Samsung are fighting legal battles all across the world. Samsung got lucky abroad – courts in the U.K., Japan, and South Korea decided that Samsung had not broken any rules. Samsung has not yet managed to get Apple products off of any shelves, but Apple has successfully gotten the Samsung Galaxy Tab 10.1 banned in several countries, such as Germany in Australia.

The U.S. lawsuit came into being on April 15, 2011 in the United States District Court for the Northern District of California. Apple said that Samsung had infringed upon 16 patents, including design patent 504,889, the trademark rounded-corner shape of the iPhone. “Samsung’s infringing sales have enabled Samsung to overtake Apple as the largest manufacturer of smartphones in the world,” Apple said in the damages suit. “Samsung has reaped billions of dollars in profits and caused Apple to lose hundreds of millions of dollars through its violation of Apple’s intellectual property… Apple conservatively estimates that it is entitled to over $25 million in reasonable royalty damages on the proportionately small set of remaining sales for which it cannot obtain an award of Samsung’s profits or Apple’s own lost profits, for a combined total of $2.525 billion.” Samsung countered by saying Apple had infringed on 10 of its patents, including prominent 3G technology.

Judge Lucy Koh oversaw the first case, where the jury ruled in favor of Apple, granting it $1.05 billion in damages from Samsung. Apple immediately sought to ban the Samsung products in question from the market. A series of appeals and other legal grappling ensued, and now the duo is set for a second court date in the spring of 2014. Judge Koh will again preside.

The Samsung S4

It makes sense for Apple to go after Samsung’s bestsellers, and the S4 is turning into just that. According to TechCrunch, Samsung sold over 6 million units in the first 15 days of the phone’s international release, which came at the end of April. Apple has just requested to add the Galaxy S4 to the list of 22 devices it is allowed to cite as infringing copyright. “Based on Apple’s analysis of the Galaxy S4, Apple has concluded that it is an infringing device and accordingly intends to move for leave to add the Galaxy S4 as an infringing product,” it stated in the request.

In order to add the phone to the list, Apple will have to drop another device. Seeing as money is the goal here, expect to see the least successful product disappear from court documents sometime soon. This process may very well repeat itself if either company makes a big launch before the court date.

Should You Worry About Your Intellectual Property If It Doesn’t Have a Patent?

One of the biggest concerns inventors and other innovators have about pitching their ideas is getting their intellectual property stolen. This isn’t a baseless fear. Theft of intellectual property including trade secrets is common, and without a patent you probably have a trade secret. Fortunately, there are some steps you can take to protect yourself.

Before you collaborate, negotiate or otherwise share information with any business or person, do your research.

If the entity in question is a person, did you actually check their references? Did you engage a company to do a formal background check on them? Are you aware of their credit and financial situation? If you’re dealing with a business, do they have any record of complaints or legal cases against them? How long have they been in business? What businesses did their owners run before, and do they run any others now? Asking these questions and finding the answers can’t head off all trouble at the pass, but it can eliminate the most shady characters from the equation.

Use the right legal tools.

In order to protect your intellectual property without a patent, the right kinds of legal agreements, carefully crafted to meet your specific needs in each instance, are crucial:

• Non-disclosure agreements (NDAs) – Anytime you need to share secret information with someone in order to work with them, sign a non-disclosure agreement. This kind of agreement makes confidentiality a condition of the relationship. There are two kinds of NDAs: mutual and unilateral. Obviously the mutual agreement means that both parties agree, no one shares information with anyone else. However, NDAs can also be unilateral, and since you are disclosing your secret to someone else, you can enter the NDA yourself as you share. Avoid end dates; clearly you are trying to maximize your protection and limit the other party’s ability to share the information.
• Non-compete agreements (NCAs) – Whenever you need to hire someone to work with you using your ideas, information or processes, a non-compete agreement should be required. NCAs set forth an established radius and timeframe (usually both during employment and immediately afterward for a period of time) within which the employee cannot start a competing business.
• Work-for-hire agreements – Chances are good that you may have to employ people to help you develop and produce your invention. If you do, work-for-hire agreements ensure that you continue to own all rights to the idea and that you also own any and all improvements made to it. This means that they are simply working for you as a contractor, and you own anything they create. This is important; you don’t want every person that works on the product at some point claiming co-inventorship status.

Get to know the competition.

Sometimes your enemies are actually allies; if you can make competitors contractors or suppliers for part of your idea they may be happy with that part of the market. And, when this isn’t enough, by being very familiar with your competition you still have a better idea of what their resources are and how to protect yourself from them.

Use other intellectual property protections.

There’s more to IP protection than patents:

• Trade secrets – If your information is secret, depends on its secrecy for its value and you are trying to protect it, it probably qualifies as a trade secret. Although theft of trade secrets is generally difficult to prove and protections are weaker than those for patents, you can seek protection for trade secrets using various legal theories including breach of confidence, breach of contract, and industrial espionage.
• Trademark – It is only a few hundred dollars to apply for a trademark and it’s easy; a trademark will also help you establish ownership of a specific logo, phrase or other simple idea that connotes your business. Trademarks are protected because they become synonymous with your unique product, so if you have a registered trademark you can more easily make the argument that your idea or invention is synonymous with your product and brand.
• Patent pending application (PPA) – If you only need to buy some time, say to pitch your invention idea, you can always file a PPA. Filing the PPA costs around $100, and while the application is processed your idea is protected for as much as one year while you label your idea “patent pending.”

Regardless of the bad press, Monsanto has just won a major victory in the Supreme Court. The court unanimously ruled that Monsanto and other companies like it can stop farmers from collecting and planting patented seed. This ruling supports hundreds of others over the past decades and will only strengthen the position of patented biological material.

Patented Seeds

To the general public, Monsanto is best known for its Roundup weed killer. To farmers, Monsanto is best known for its Roundup weed killer-resistant strain of soybeans, which hit the market in 1996, according to the Huffington Post. These soybeans make up 90% of the soybeans on the market, and seeing as us Americans use soybeans and soybean products in everything from processed food to plastic, this is a very big deal.

Monsanto and other similar companies face a serious hurdle when it comes to their product. Seeds can reproduce, and farmers throughout the ages have collected seeds from their plants and used them to grow the next crop. If farmers do this with patented seed, though, companies that genetically modify seed will quickly go out of business. In order to continue making a profit off of its invention, Monsanto made the practice of collecting its patented seed the subject of over 100 lawsuits against farmers. It has thus far won every single case.

Bowman vs. Monsanto

That Bowman vs. Monsanto made it all the way to the Supreme Court seems surprising given the way it was received there. Vernon Hugh Bowman, 75, was at the center of the case. The Indiana-based farmer purchased a batch of Roundup-resistant seeds from Monsanto each year for his first crop. Later in the growing season, though, Bowman purchased cheap soybeans from a grain elevator that he knew contained Monsanto seeds. Although the soybeans were meant as animal feed or human consumption, Bowman planted the mix and grow a second crop of genetically altered soybeans for a hugely discounted price.

Bowman executed this arrangement for eight years before Monsanto caught onto him. In 2007, Monsanto won $84,456 in a lawsuit heard by the United States Court of Appeals for the Federal Circuit. Bowman appealed the decision, and, in an unconventional move, the Supreme Court agreed to hear the case.

But Bowman’s argument, which revolved around patent exhaustion, garnered an unfavorable reception in the Supreme Court. Bowman’s lawyer argued that, because the grain elevator had paid for the patented seeds, Bowman did not have to pay again to use the product. Monsanto countered the argument by pointing out that Bowman had free reign to use the soybeans in another way, but that using them as seed meant he was duplicating a patented product.

The company also stated that developing the genetically altered seeds had been a significant monetary investment, and that Monsanto had made the investment with the intention of upholding the patent. “Without the ability to limit the reproduction of soybeans containing this patented trait, Monsanto could not have commercialized its invention and never would have produced what is now the most popular patented technology” in farming, Seth Waxon, a Monsanto lawyer, told the court (Huffington Post).

The judges agreed with Monsanto’s point of view. “Under the patent exhaustion doctrine, Bowman could resell the patented soybeans he purchased from the grain elevator; so too he could consume the beans himself or feed them to his animals,” Justice Elena Kagan wrote on behalf of the court. “But the exhaustion doctrine does not enable Bowman to make additional patented soybeans without Monsanto’s permission, and that is precisely what Bowman did.”

“Bowman planted Monsanto’s patented seeds solely to make and market replicas of them, thus depriving the company of the reward patent law provides from the sale of each article,” Kagan added. “Patent exhaustion provides no haven for that conduct” (L.A.Times).

The Overriding Issue

Some think, though, that this ruling has little to do with the larger issue of genetic patenting. Even Justic Kagan acknowledged this: “Our holding today is limited — addressing the situation before us, rather than every one involving a self-replicating product,” she wrote in the post-decisions statement. “We recognize that such inventions are becoming ever more prevalent, complex, and diverse. In another case, the article’s self-replication might occur outside the purchaser’s control. Or it might be a necessary but incidental step in using the item for another purpose.” This ruling, and others like it, will become more and more important as issues surrounding patents for the human genome arise.

Aaron Greenspan, the software entrepreneur who founded Think Computer, is a little like Jason Voorhees of the Friday the 13^th movies: he just keeps coming back. On Monday, May 6, 2013 the arch enemy of Facebook creator Mark Zuckerberg filed suit against not only that ubiquitous social network but most of Silicon Valley.

Think Computer’s latest suit zeroes in on what it terms “money services businesses” or “MSBs” including companies that make digital payments and transfer cash like PayPal, and funders from large investment firms to solo “angel” financiers. The connection is that most of the companies are startups who were funded by the named investment firms and angels. Among Think Computer’s defendants in the 146 page complaint are A-Grade, Airbnb, Andreessen Horowitz, Coinbase, DST Global, Dwolla, Kleiner Perkins Caufield & Byers, PayPal and Slide co-founder Max Levchin, Reddit CEO Yishan Wong, Sequoia Capital, Square, and Y Combinator.

What’s getting Greenspan so steamed up? What he calls “myriad violations” of both the California Money Transmission Act (MTA) and the Bank Secrecy Act, to start with. He also accuses the defendants of generally “unlawful, unfair, fraudulent and deceptive business activities.” He cites his own experience operating an MSB, FaceCash, as proof of the malfeasance of the defendants—an interesting approach.

Aaron Greenspan’s argument goes something like this. FaceCash was working wonderfully until July 1, 2011. That’s when the MTA went into effect and, ostensibly, anyway, started its role as regulator of all domestic money transmissions in California. At that point all MSBs in the state were required to work with the California Department of Financial Institutions (DFI) to achieve licensure for money transmission. Greenspan alleges that he tried to do just that, beginning his license application process well in advance of the deadline, to no avail.

In fact, Aaron Greenspan and FaceCash were never able to get licensed. That led to another lawsuit, still pending, in the same court that will now be hearing this latest case. This is the basis for the latest case, in fact: Greenspan alleges that since the process was essentially impossible thanks to “insurmountable difficulties with the DFI’s unwritten and arbitrary policies,” the fact that these other MSBs did grow their businesses without ever attempting to comply with the licensure requirements establishes their guilt.

His argument is that everyone knows that it’s impossible to comply with the MTA, and no one gets caught when they don’t, so none of the startup MSB defendants did. Ergo, they and their investors (also defendants for this reason) knew their actions were illegal (or, in the case of the investors, were willfully negligent).

He may be right, and it seems obvious that California’s MTA is much tougher than comparable laws in other states. (Of course his railing against the MTA in this particular lawsuit is misplaced; whether or not the MTA is unfair has no relevance to the issue of whether these defendants are violators.) Unfortunately for Aaron Greenspan, he has sued enough people to seem litigious at best—his own word choice—and a little crazy at worst (that last word choice is mine). Still, his complaint raises some valid points assuming the facts are true, and this remains a case to watch.

Justin Bieber, Canadian singer/songwriter and magnet for moms and tween girls alike, is now getting some very much unwanted attention. Bieber and his equally famous mentor, R&B singer Usher, were just accused of ripping off Bieber’s song “Somebody to Love.” Singer Devin Copeland and songwriter Mareio Overton say they wrote the piece, and are asking for a cool $10 million for copyright infringement, Reuters says. Let’s hope that seeing Justin Bieber sued won’t drive superfans to extreme measures.

The Song

According to Wikipedia, “Somebody to Love” was written by a songwriting group called the Stereotypes. Usher recorded the song for his 2010 album Raymond vs. Raymond, but instead of including the song on the album, Usher and the Stereotypes ended up offering it to Bieber.

The track was released as part of Bieber’s 2010 album My World 2.0. On the album, the song is credited to the Stereotypes and Heather Bright. A second remix version of the song was included on Usher’s next album, Versus.

“Somebody to Love” was never a single and was certainly not one of Bieber’s bestsellers. The song peaked at #15 on the Billboard Top 100 and #10 on the Canadian Hot 100.

The Story

According to Devin Copeland and Mareio Overton, “Somebody to Love” originated in their heads. Devin Copeland, known by his stage name “Devin the Dude,” has a significant underground following out of his hometown of Houston as a rapper, while Mareio Overton is a songwriter or little current notoriety (even Google has no idea who he is). The pair claim to have written “Somebody to Love” in 2008, after which it allegedly made it to Usher’s camp.

Usher’s mother, who also serves as his manager, allegedly contacted Copeland in 2009 to invite him to record the song with Usher and go on tour with him. After that fateful conversation, communication with Usher’s representation reportedly ceased. A year later, Copeland and Overton say they heard Bieber singing their song on the radio.

The Lawsuit

Copeland and Overton filed their suit in the Virginia U.S. District Court last week. The suit names 19 defendants, including Bieber, Usher, Usher’s mother, and several recording companies. “There is essentially a zero probability for the number of points of congruence between the two versions of ‘Somebody to Love,’” the lawsuit reportedly reads, citing similarities in chord progressions, lyrics, and tempo. Copeland and Overton are seeking $10 million for the alleged copyright infringement.

May 3, 2013 was the Day Against Digital Rights Management (DRM) according to a press release from the Free Software Foundation (FSF). Timed to coincide roughly with the 20 year anniversary the open World Wide Web, FSF and more than two dozen other organizations announced the circulation of a petition opposing DRM measures to be delivered at the World Wide Web Consortium in Boston.

Digital Rights Management is a set of new technical enforcement measures proposed by the World Wide Web Consortium designed to enforce copyrights more stringently. Essentially the technology will control what you can and cannot do with media and devices you buy. The many opponents of DRM argue that the measures are contrary to information flow and will restrict the open Internet far more than is necessary or reasonable. By the time the petition was delivered on May 3, it had 25 signatories and almost 25,000 signatures.

So, what’s the big deal? There are several major issues with DRM technology—or, at least, the business models that come with it—that should be of note here.

DRM technology controls come imbedded in digital works, so they are within them when when they go to the consumer. This means that they work after consumers have lawful access to the work, giving producers “downstream” control over the ways that consumers use works they acquire in legitimates ways. There are many different forms of DRM technology being developed, which means that providers have lots of choices, but consumers don’t (not to mention licensees who also don’t choose).

The American Library Association is very concerned about DRM technology, for example. DRM technology limits the secondary transfer of digital works. This is a problem, because secondary transfer is all libraries do. They buy the original copy and then loan the copy out repeatedly to members of the community. Each time they do this the borrower becomes the secondary transferee. If DRM technology eliminates the “first sale” doctrine by limiting secondary transfer of works, libraries and communities are in trouble.

Along these lines, DRM technology that enforces “pay per use” and time limited models for control of information hurt not only libraries but archives, research and educational institutions, and other public preservation systems like museums. These models for use of DRM technology also limit the transfer of content into different formats, further hampering the preservation of information. All of these issues present serious problems for public institutions, not to mention our human culture generally. Finally, it will be crucial to preserve longstanding exceptions to Copyright Law such as “fair use,” parody and educational use.

All of these issues are of real concern given the current DRM atmosphere. This is an issue to watch.

That was the conundrum facing the Federal Trade Commission, or FTC, when they tried to start litigation for an Indian scam targeting American consumers. The result? A landmark ruling, and one more legal Facebook issue to add to the growing pile.

The Scam

The scam in question was allegedly coordinated by two Indian companies – PCCare247 Solutions and Connexxions IT Services – and the group of five defendants who ran said companies. The scam allegedly duped tens of thousands of English speakers into paying $45-$450 apiece for fake spyware removal.

Here’s how it worked: English-speaking consumers would search for their anti-virus software’s phone number, and a phone number for the bogus operation would come up. When the victims called the number, telephone representatives would apparently claim that the victim’s system was infected. The reps would substantiate the claim by directing victims to the utility dock of the computer and giving them false information regarding indicators of computer infection. The representatives would then charge a fee ranging from $45-$450, take remote control of the victim’s computer, pretend to fix the problem, and download free anti-virus software onto the machine.

The scammers apparently tried to remain incognito by using 130 phone numbers, 80 domain names, and virtual offices. The FTC caught up with them anyway in late 2012, shutting down the scams and filing papers.

Desperate Measures

Once the FTC zeroed in on the operation, they tried to start litigation via more conventional means, according to a document obtained by TradeSecretsLaw. They sent a summons and complaint to the Indian Central Authority and to the defendants via FedEx, email, and personal service. The defendants got the summons and hired attorneys, only to fail to pay said attorneys. The lawyers therefore bowed out in early 2013. Meanwhile, the Indian government had not served anything and was unresponsive to FTC requests.

Facebook

Which is why U.S. District Court Judge Paul Engelmayer of the Southern District of New York decided that the Federal Trade Commission could serve the defendants via Facebook. The court reportedly decided to grant the action because the FTC was able to provide lots of evidence that the Facebook accounts in question were operated by the defendants. The account owners were all Facebook friends, and the job titles and emails on the accounts matched those listed for the businesses. The court also took into account the fact that the defendants already knew about the case and had in large part ignored it, as had the Indian government. Finally, the defendants are all in the computer business and are known to use email and Facebook regularly, so chances of making contact via Facebook are relatively high.

“The Court acknowledges that service by Facebook is a relatively novel concept, and that it is conceivable that defendants will not in fact receive notice by this means,” the Court said in light of the decision. “But, as noted, the proposed service by Facebook is intended not as the sole method of service, but instead to backstop the service upon each defendant at his, or its, known email address. And history teaches us that, as technology advances and modes of communication progress, courts must be open to considering requests to authorize service via technological means of then-recent vintage, rather than dismissing them out of hand as novel.”

Future Repercussions

So, while getting served papers on Facebook seems like a scary concept, we in the U.S. will probably never experience it – and it will likely never be used alone. The judge in this case only approved it in conjunction with other means of communication with the defendants. So go ahead and make that extra cup of coffee for the process server. He or she will be around to drink it for years to come.

As UpCounsel reported on April 16, 2013, the Supreme Court is set to decide the Association for Molecular Pathology v. Myriad Genetics case–the gene patent case–in June 2013 based on the oral arguments it heard on April 15. The case was originally fired up in the media and public mind in large part due to the controversy surrounding patents on the BRCA1 and 2 genes, also known as the breast cancer susceptibility genes. Especially given the radical ethical conflicts stirred up by the discovery of the genes—preventive mastectomies, for example, which have been elected since the discovery even by women who do not carry the genes—have stirred heated debate.

The question of human gene patents is now before the court. The issue is whether human genes are unpatentable as products of nature or if, instead, they are somehow created by the hands of humans. This means that the court will only be deciding whether genes themselves are patentable; it does not touch whether or not any specific applications for patents should be granted. The “inventor” of each proposed gene patent (like any other proposed patent) would still need to show that their gene was novel, nonobvious, and explicitly described.

The Myriad case is interesting in part because the claim in the case is that human genes are subject to product patents, not that method patents should be granted to those that discover human genes, isolate them, or ascertain the function of the genes using their own processes. Since the owner of a product patent can stop any other person or company from making, selling or using the patented product without his permission and the “product” in question here is a human gene that can stop a deadly cancer, there are many ethical issues raised by the case. The product patent prohibits use without permission, and it doesn’t matter what kind of use it is.

On the other hand, a method patent simply prohibits exact copying of a specific process. In the case at bar here if a researcher came up with a different way to test for and isolate the breast cancer gene there would be no violation of a method patent. It should come as no surprise to anyone that IP lawyers enjoy product patents as the stronger form of protection.

It seems most likely that simple isolation of human DNA will not be enough for product patentability and the granting of human gene patents. However, the court may well decide to take the middle road and allow product patents for cDNA, a synthesized type of DNA made without the non-coding sequences that natural genomic DNA has. While it is certainly worth noting that there is little functional difference between DNA and cDNA, the cDNA is synthesized and wouldn’t exist without human intervention. Furthermore, this compromise of sorts would balance the fears of human gene patent advocates that without patent-related profits innovation will be stalled.

Ethical and philosophical considerations aside, who will actually care about or be impacted by this decision? Frankly, even Myriad probably won’t care that much. Sequencing technology is growing by leaps and bounds, and it won’t be long before isolating individual genes isn’t even necessary for diagnostic testing. These advances will render the existing gene patents and the rule handed down by the court irrelevant to other companies. And even Myriad is using different strategies as it moves forward. Since expansion in Europe is a particular goal of Myriad and the public health systems in European countries are hostile to gene patents like those on the BRCA genes, the company has no choice but to pursue different avenues of innovation.

Of course the ethical and philosophical considerations do remain interesting enough to keep us all on the edges of our seats. It’s simply worth noting that the excitement isn’t because the case is going to reshape the legal landscape in a major way.

The Facts

The Affordable Care Act, or ACA, was signed into law on March 23, 2010 after considerable debate. The issue of health care was big during the 2008 Presidential Campaign, and future President Obama listed universal health care as a high priority. Work on health care reform started in 2009, and it eventually made it through the Senate, the House, and into the law books (HealthCareReform).

The Affordable Care Act targets several constituencies, including young adults, seniors, and those with pre-existing conditions. The law offers options for all of these demographics to aid them in getting and keeping affordable health insurance. For example, the Consumer Assistance Program is meant to aid those who have trouble finding insurance based on what state they live in.

The many changes of the Affordable Care Act are designed to take effect in waves. Several changes, including coverage for young adults under their parents’ plans and improved preventative health coverage, have already taken effect. Other changes are scheduled for 2014 and 2015.

Public Opinion

Even though the American public is already benefiting from the Affordable Care Act, Keiser suggests that many people don’t even know the law passed. According to the poll, 42% of Americans do not know that the Affordable Care Act is, in fact, a law; 12% of those people apparently believe the law was repealed by Congress, while another 23% did not know enough to comment further.

Even those who are aware of the legal status of the Affordable Care Act haven’t read up much on what the law meant for them. 49% of those polled admitted that they weren’t sure how the law would affect them or their families. 40% of people said they got their information on the law from acquaintances or family members; only 9% bothered to get their information from Federal sources, like the Affordable Care Act Website.

Even worse, the least informed are also those most in need of help. The poll showed that 58% of uninsured and 56% of low-income households did not understand how the law could benefit them.

Regardless of where the information (or lack thereof) came from, the study revealed that Americans in general have mixed opinions on the law. Only 6-9% reported hearing mostly good things about the Affordable Health Care act, and 61-65% said they heard a mix of negative and positive opinions.

Government Opinion

Public officials are as divided as the American public where the Affordable Care Act is concerned, partially because of the hassle of implementing new parts of the law each year. Some problems were also built into active parts of the Affordable Care Act. One of the more complex parts of the act was the process of applying for insurance through the program. This process was recently amended to a more user-friendly version that requests minimal information instead of a full medical history.

“The challenge is that… setting up… an online marketplace where you can go on and sign up and figure out what kind of insurance you can afford and figuring out how to get the subsidies, that’s still a big complicated piece of business,” Obama commented regarding the changes. “But having said all that, we’ve got a great team in place. We are pushing very hard to make sure that we’re hitting all the deadlines and the benchmarks.”

President Obama also says that this issue limited to the uninsured, and that for the majority of Americans the Affordable Care Act is being implemented smoothly. “For the 85 to 90 percent of Americans who already have health insurance, this thing’s already happened, and their only impact is that their insurance is stronger, better, more secure than it was before,” he told reporters on April 30 (ABC). It remains to be seen whether pubic opinion – or even awareness –will follow.