Welcome to Blawg Review #260

The Genomics Law Report is pleased to host the 260th Blawg Review. For regular GLR readers who are unfamiliar with the Blawg Review concept, it’s the longest-running weekly recap of legal blog posts in cyberspace. Each week, a different legal-related blog (also referred to as a blawg or, in the GLR’s case, an Internet journal) hosts Blawg Review, highlighting the most interesting posts from the previous week. Think of it as an enhanced version of our regular Weekly Twitter Roundup.

The occasion for this week’s Blawg Review is DNA Day 2010. For regular Blawg Review readers who may not be familiar with DNA Day, the event was established by Congressional resolution in 2003 to commemorate the 50th anniversary of the description of the double-helix structure of DNA and to celebrate the publication of the final consensus human genome sequence produced by the Human Genome Project.

This year’s DNA Day (April 23rd) is generating more publicity than usual as it coincides with the 10th anniversary of the draft human genome sequence. (Perhaps it makes sense to peg anniversary celebrations to the draft publication, as the final human genome sequence is still being completed seven years after its publication.) Many of the genomic pioneers from this past decade, as well as decades prior, will be gathering in Cambridge, MA next week at the GET Conference to take stock of how far the science and commerce of genomics has come, and project where it is heading in the decades to come.

So, pick your favorite anniversary – 57 years since the double helix, 10 years since the draft genome, 7 years since the final genome or 5 years since the first Blawg Review – and join us as we looks back at the week that was in blawging.

Myriad Opinions on Gene Patents. It’s been three weeks since Judge Sweet’s ruling in Association for Molecular Pathology v. USPTO (or as it is more widely known, the Myriad gene patent litigation) and it’s still generating quite a bit of conversation. The latest round of commentary has been spurred by the publication of a series of gene patent and licensing case studies in the journal Genetics in Medicine. At The Wall Street Journal’s Health Blog, Katherine Hobson points out that as the price of whole-genome sequencing continues to fall, gene patents are likely to cause tensions to escalate at the intersection of commercial biotechnology and clinical genetics.

The response from Emory’s David Ledbetter, director of the school’s medical-genetics department, is typical: “Everybody is a little bit nervous [about conducting Emory’s new chromosomal microarray test, which looks for abnormalities across the genome] because of the legal situation of whether or not what we are doing would be viewed as infringement.” Still, Ledbetter and Emory aren’t about to stop testing.

Whether Ledbetter and his colleagues will actually be sued for patent infringement is, of course, another matter. Over at Patent Docs, Kevin Noonan argues that the anti-commons (including the one arguably produced by gene patents) aren’t so tragic after all. The study that Noonan reviews (and which was published in a recent issue of Nature Biotechnology) is limited to stem cell patents and the litigation arising out of such patents. Noonan’s conclusion, however – that university researchers are at no real risk for patent infringement liability and that patents do not cause university researchers to abandon important areas of research – could have important implications for the gene patent policy debate if it is both correct and extensible beyond the stem cell arena. For the moment though, the question lingers: do gene patents do more harm than good?

The Ombudsman is Watching. If those pesky patent examiners are giving you problems with your latest gene patent application, perhaps you need a better patent attorney. If you find yourself in the market, check out Patently-O, where Dennis Crouch has a review of the US News & World Report patent law program rankings for 2011, along with a number of his own “junk-science” patent rankings. If you’re still having trouble with the USPTO, perhaps it’s time to go see the ombudsman. Sarah Fendrick of Patent Docs tells us that the PTO has launched a new ombudsman pilot program to provide applicants with assistance in solving their application problems.

An Open and Shut Argument For Closed Systems? To wrap up the patent-related news, we start with some interesting speculation from Neil Wilkof of IPKat about whether Apple, which was once criticized for its “closed system, proprietary outlook,” is now out-competing Google and it’s open source approach to technology development using the same proprietary approach that arguably failed Apple several decades ago. Either way Neil is correct in that the competitive advantage of open vs. closed systems is an ongoing, and fascinating debate.

Guess What Else is Opening Up? Speaking of opening up, you may have heard that the Supreme Court is due to have a vacancy this summer when Justice John Paul Stevens retires. The vacancy is old news, but the speculation (and lobbying) about who will join the court is in high gear. At The Huffington Post, Linda Monk paints Elena Kagan as the next Earl Warren, LawPundit nominates Cass Sunstein to inject a bit of modern reality into the upper echelons of the judicial branch of government. Jack Balkin thinks it will be someone who will sustain the Proclamation of Emancipation and the Legal Tender Act (as well as one or two other Obama administration priorities) and Kashmir Hill of Above the Law rounds up more of the SCOTUS speculation. If you just can’t get enough, head over to FantasyScotus.net and try your hand at prognostication.

Closing the Door on Net Neutrality. What’s not opening up, at least for the moment and at least for the United States, is the internet. Unless you’ve been living without an internet connection (in which case you probably don’t care) you already know that the D.C. Circuit ruled earlier in the month that the FCC lacked the authority to mandate that telecommunications companies provide broadband users with equal access to all internet content. If you haven’t gotten a round tuit yet, Infamy or Praise has a recap of early thoughts on what the ruling means and whether we will all soon be sent back to the digital stone age.

Following the Net Neutrality setback, commentators have started to wonder whether any of the FCC’s other initiatives will be curtailed as well. The CommLawBlog asks whether the FCC’s regulation of VoIP is in Jeopardy after Comcast (short answer: “yes”) while at The Huffington Post, Art Brodsky reviews Snowpocalypse Now, also known as FCC Chariman Julius Genachowski’s visit last week to the Senate Commerce Committee following the FCC v. Comcast decision, and speculates whether Congress is going to step in and help out (short answer: “not likely”). To help make that point, Senator John Kerry also showed up at The Huffington Post this week to clarify that the Congressional cavalry is not coming (at least not in the form of legislation) and to urge the FCC – and to urge all of us to urge the FCC – to fight back by reclassifying the Internet as a “communications service” instead of an “information service” and make an end run around Comcast.

Another pressing concern is whether and how the Comcast decision is going to impact the FCC’s recently announced National Broadband Plan (NBP). That’s still difficult to tell (“assessing the implications” of FCC v. Comcast, is how the FCC’s general counsel put it) but, thankfully, there are wide swaths of the NBP that have nothing to do with Net Neutrality, and over at BlogBand, the NBP’s official blog, Nick Sinai writes of receiving a letter of support for using broadband to track real-time energy consumption signed by nearly 50 companies including (of course) Comcast. If you’re concerned about what you’ll find out when you start monitoring your energy consumption, head over to the Green Patent Blog® where Eric Lane profiles some interesting new ways to recycle waste heat, including from the computer you’re reading this post on right now.

Finally, even if the FCC can’t stipulate what type of awesome broadband access we will receive, it is still planning to tell us what type of possibly-less-awesome broadband access we are actually getting, as Dave Vorhaus of BlogBand writes in announcing a third-party project to collect information on actual ISP performance (as opposed to what the advertising materials say when you sign up).

A Healthy Dose of Privacy Law. If Net Neutrality falls apart and you soon find yourself reading the latest Blawg Review on a dial-up modem, try to remember to keep your electronic vitriol to a minimum. This is good advice if you’re venting over email in light of the 11th Circuit’s recent ruling in Rehberg, of which Andrew Moshirnia of the Citizen Media Law Project’s blog takes an extremely dim view.

It’s also a suggestion worth heeding for Ohio judges taken to commenting on the website for the Cleveland Plain Dealer, which Eugene Volokh of the Volokh Conspiracy informs us has been hit with a $50 million lawsuit for re-identifying Judge Shirley Strickland Saffold with her once-anonymous comments. (We suppose these are helpful reminders that the issue of re-identification is not limited to genetic and medical data.) If Judge Saffold’s case makes it to the courtroom, perhaps she could benefit from The Jury Room’s tips for direct jury persuasion.

Moving on to privacy rights of a Constitutional nature, Jotwell (the Journal of Things We Like (Lots), a relatively new publication which is to law review articles what Blawg Review is to blawg posts, takes a look at group searches and Fourth Amendment rights. There, Christopher Slobogin reviews fellow RBH attorney Richard Worf’s recent article setting out the case for rational basis review of general suspicionless searches and seizures.

Coming Soon to the UK: The First Amendment. If government dragnets leave you hot under the collar, and you’re the type that prefers to air your criticisms loudly and publicly, there’s good news from the other side of the Atlantic. British science writer Simon Sing is free and clear of libel claims brought by the British Chiropractic Association (BCA), reports Mark Henderson of The Times of London, after the BCA dropped all charges just weeks after a landmark ruling from the Court of Appeal allowing the fair comment defense. That’s an important step on the path to bring British libel law in line with basic principles of free speech and common sense that all blawgers should be happy to see.

Not that everybody in the UK is happy right now (or ever). Derek Lowe writes at In the Pipeline that Novartis and Roche are so displeased with the government’s approach to drug pricing and regulations on clinical trials that they are threatening to pull their R&D out of the country. One can only imagine what type of problems they’d have with regulators if, like Pfizer, they’d referred to one of their drugs as witch’s brew or snake oil.

Rounding the Home Stretch. Jeremy Grushcow of The Cross-Border Biotech  Blog is prognosticating again with his latest biotech trends update. The current edition focuses on why biotech companies continue to drag their feet when it comes to embracing social media, and rounds up a number of useful posts on the topic. Over at David Harlow’s HealthBlawg there’s an equally enlightening health and policy roundup: the Tax Day edition of Health Wonk Review, which covers everything from student health insurance to HITECH to individual mandates.

Returning to our oft-abandoned theme of DNA Day, the conversation about the wisdom of DNA databases as a crime-fighting tool continues, sparked in no small part by President Obama’s appearance last month on America’s Most Wanted to voice his support for the creation of a national DNA database. In addition to crime-fighting keyboards and cats, recent developments include Ohio’s proposed DNA testing and retention law (The StandDown Texas Project has a nice roundup of media coverage) and an update on the status of the Crime and Security Act 2010, which, as Human Rights in Ireland describes, tightens DNA retention requirements in the UK, but only up to a point.

Making Yourself Heard, and Remembered. We close by coming full circle, with a look back to last week’s Blawg Review, where Legal Blog Watch sagely suggested that if you wanted your own blog recorded as part of legal history, it might help to host a Blawg Review. Excellent advice and, if you’re listening, Library of Congress Blog, you have only one science-related blog in your archives, and it ceased publishing last summer. For those of us without archive-worthy blogs or (gasp) without any blog at all there is always Twitter. According to the Library of Congress, all of our tweets, ever, are now earmarked for the LOC vault. So try to remember to think carefully about which 140 character missives you’d like to see live on forever.

That’s all the news that was (and that we cared to tell you about) for this week’s Blawg Review. Up next week for Blawg Review #261 is IPKat. We imagine the next edition will feature plenty of commentary on this week’s late-breaking announcement: the SEC’s lawsuit against Goldman Sachs for misleading investors, a story The Wall Street Journal’s Law Blog thinks has plenty of legs. Also, remember that Blawg Review has information about next week’s host, and instructions for getting your blawg posts reviewed in upcoming issues.