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In 18 June 2021, a Full bench of the Federal Court of Australia (Middleton, Nicholas, and Burley JJ) unanimously upheld a decision of a single judge of the court (Beach J), finding that a method of detecting cell-free foetal DNA (cffDNA) in maternal blood serum comprises patent-eligible subject matter (i.e. a ‘manner of manufacture’) under Australian law: Ariosa Diagnostics, Inc v Sequenom, Inc [2021] FCAFC 101.  The patent at issue is Australian patent no. 727,919, covering an invention originally developed by Oxford University researchers, and subsequently transferred to Sequenom Inc.  The patent expired in March 2018, however a live dispute remains because Ariosa Diagnostics licensed its ‘Harmony Test’ – which Sequenom says (and the Full Court has agreed) infringes the patent – for use in Australia since at least September 2015.

To my mind, the result in this case is neither particularly surprising nor contentious.  The patent claims are directed to a method of detecting cffDNA.  While the method is underpinned by the naturally occurring fact – not known until its discovery by the inventors prior to March 1997 – that cffDNA is present in maternal blood serum, a useful method of detecting a previously unknown natural phenomenon, having a practical application, has long been considered patentable.  Ariosa’s arguments that Sequenom’s claims were in substance directed to the ‘mere’ discovery itself, resulted only in the production of ‘information’, and therefore unpatentable, were unsuccessful.  And while the broad scope of the main claim in this case might raise other issues, such as obviousness or sufficiency of description, these matters have also been addressed at first instance and/or on appeal, and are separate from the question of subject matter eligibility. 

Nonetheless, this case will generate some interest, if only because the result in Australia is opposed to the outcome of equivalent litigation between Sequenom and Ariosa involving a corresponding patent in the United States.  In that case, a narrower claim than in Australia was found to be directed to an unpatentable natural phenomenon.  The result was controversial, not least because a number of judges on the US Court of Appeals for the Federal Circuit (CAFC) – including Judge Linn on the original panel (Ariosa Diagnostics, Inc.v. Sequenom, Inc. (Fed. Cir. 2015)) and Judges Lourie and Dyk in a decision refusing en banc rehearing – indicated that they felt bound by the Supreme Court precedents, but did not agree with the outcome.  There was therefore great disappointment when the US Supreme Court declined to hear an appeal.

The outcome of the Australian appeal is not all bad news for Ariosa, however, with the finding of the primary judge on infringement being partially reversed.  In particular, there were periods during which the Harmony Test was not carried out in Australia, but instead samples were sent to the US for testing by Ariosa, which the primary judge found also to be infringing actions.  The Full Court has disagreed, finding that ‘importing’ the information resulting from the tests into Australia did not comprise a relevant ‘exploitation’ of the claimed method, as it might have done were the product of the method a physical article.

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An article appeared on the Lexology legal news service in the past week that riled me a little – not least because it mentions my name and (in my view) misrepresents something that I wrote a few months ago.  For those who may be unfamiliar with Lexology, it is a service that aggregates content from legal and attorney firms, and other service providers, creating a searchable archive and delivering tailored email bulletins to subscribers.  It is free to subscribe and read, but the firms that provide all the content pay handsomely for the privilege of being aggregated and distributed.  In other words, it is not so much a ‘news’ service for readers as it is a marketing service for the contributing firms.  Most of the content is originally published on the firms’ web sites, from which it is automatically picked up (‘ingested’) by Lexology. 

While many of the articles appearing on the Lexology site are useful and informative – e.g. reports of the latest legal developments in various jurisdictions served by the contributing firms – some are pure marketing.  The piece that has so irked me falls, in my opinion, into the latter category.

The article in question is entitled ‘The brain drain: why are senior patent attorneys leaving?’  Authorship is attributed to James & Wells partners Ceri Wells and Adam Luxton.  Wells is one of the firm’s founders, while Luxton recently joined the firm having previously worked for Spruson & Ferguson – a firm owned by listed holding company IPH Limited (ASX:IPH).  Lexology picked the article up from James & Wells’ website, although that was not its first outing – it was originally published as a sponsored article in Australasian Lawyer [PDF 1.04MB]. 

Never let it be said, then, that James & Wells has not extracted maximum value from the piece, which bears all the hallmarks of having been written not by Wells and Luxton themselves, but rather by a marketing professional.  It takes the classic public relations form of ostensibly objective reporting, interspersed with quoted and paraphrased comments from Wells and Luxton in support of the article’s main theses, which are that:

1. there has been an ‘exodus of senior patent attorneys from formerly private firms’ because of ‘corporatisation’, and the acquisition and merger strategies of the listed holding companies IPH Limited and QANTM IP Limited (ASX:QIP);
2. as a result, those firms are losing the benefit of these senior practitioners’ experience, and they are ‘being replaced by younger people with a lot less experience’ who are ‘missing out on the mentorship they need at that point in their career’;
3. this may lead to junior attorneys feeling ‘overworked and stressed’;
4. practitioners in ‘corporatised’ firms may lack the autonomy and discretion to keep clients ‘at the forefront’ and to build strong relationships ‘based on trust and respect’; and
5. established firms now owned within corporate groups are no longer able to guarantee clients that ‘whoever you engaged in that organisation would be able to deliver’.

Overall, the tenor of the article is simply that ‘corporatised firms = bad’ whereas ‘traditional privately held, partnership type models (like James & Wells) = good’.  Perhaps it feels plausible that this might be so, and doubtless there are people around who will attest, anecdotally, to some experience that supports the argument.

I am just not persuaded that it is true, or that having firms going around claiming that it is are doing the Australasian profession any favours.

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The last two years have been incredibly challenging for anyone in supply chain.  It started with a supply disruption out of China in late 2019 / early 2020.  We then went into a demand crisis in April / May of 2020 and then for many industries it very quickly turned right back to a supply crisis.  Both with inventories being low and then the entire country trying to restock at the same time which led to too much demand and not enough capacity to move global products.  Even US based products were effected because whether made in the US or not, many of the components come over seas. 

One hidden part of the capacity issues was the fact that passenger planes stopped flying.  In the "belly" of passenger planes flies a lot of cargo and when those planes stopped flying, cargo which normally went by air had to find another way to travel.  This added to the supply chain issues.  

Much of this has been covered and many articles written so I will not rehash them here.  However, what have we learned?  What will we do differently?  The first thing I think about is crisis management.  It turns out, if you are going to be a great supply chain leader,  you need to be a crisis manager.  That has somewhat always been the case but in the last two years it has gone "mainstream".  So, what does it take to be a good crisis manager.  Here are my 4 learnings from the last few years:

1. Honesty - Be Honest and Straightforward in Communication:  This is akin to the idea that you will never solve a problem or deal with a problem unless and until you face up to it and admit it.  In your company you need to honest with your executives, your associates, sales and even, yes, your customers.  
   
   When these supply issues hit hard two companies stood out: Peloton and Ikea.  Both companies went public early on, described what the problem was, what they were doing about it and what people could expect.  "Bad news does not get better with age" applies here.  
   
   This also applies to associates.  Make sure you are honest and straightforward with them as well. 
   
   
2. Be Calm and Do Not Panic:  Panic is a flight response to an issue that is somewhat embedded in our DNA.  However, we as humans can control our responses to anything.  This is the time when you have to lead with calmness and strength.  Stay focused on the mission(s) at hand.  Focus on solving problems. 
   
   
3. Be Decisive:  You will not have all the facts by the time you need to make a decision.  You need to get as much data as possible but when the time comes you are going to have to "make a call".  And this is where the job can get lonely - YOU need to make that call.  As Matt Damon says in Ford v. Ferrari, "You cannot win a race by committee".  You then need to have all your antenna up to read new and conflicting information, synthesize it quickly and adjust if necessary.  Procrastination is not a decision.  
   
   
4. Provide a Vision of the Future:  Most people understand when a crisis hits and they understand the work is going to get difficult and they are OK with working incredibly hard if they see what the end vision looks like.  For example, out of this pandemic and supply chain crisis we will have actions in place to get us through even more difficult times should they come up in the future.  The company is going to do great when the consumer hits the great reopening period.  Those are two examples of hope and vision.  

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Our infographic highlights the benefits and importance of digitizing the supply chain and how users that deploy a supply chain management solution can analyze and act on the data derived from a fully connected, intelligent, and transparent supply chain. Read more about the benefits in our '5 WAYS DIGITAL TRANSFORMATION HELPS YOU MAKE INFORMED DECISIONS'