Bernstein Shur Business and Commercial Litigation Newsletter #27


Bernstein Shur Business and Commercial Litigation Newsletter #27

Daniel J. Murphy, Paul McDonald

April 2013 | Issue 27

By Paul McDonald and Daniel Murphy

We are pleased to present the 27th edition of the Bernstein Shur Business and Commercial Litigation Newsletter. This month, we highlight stories that will have an impact on business, commerce and litigation, including the patentability of human genes and the spoliation of social media evidence. We hope you enjoy the newsletter.

In the News:

U.S. Supreme Court hears oral arguments in case to decide whether human genes are patentable. For a number of years, the United States Patent and Trademark Office has granted patents on human genes. In fact, nearly half of the human genome is subject to patents, which are held mostly by universities and biotech companies. Earlier this month, the U.S. Supreme Court considered arguments in the case of Association for Molecular Pathology v. U.S. Patent and Trademark Office, which challenges several patents related to genes believed to be linked to breast and ovarian cancers. The plaintiffs contend that because human DNA is a product of nature, it is not patentable. The defendants argue that gene patents are based on isolating the genes, which is a product of human ingenuity. Apart from the purely legal questions, the case presents significant public policy questions of whether patenting genes inhibits scientific progress and, therefore, harms patients. This decision is likely to have a significant and long-lasting impact on the medical, pharmaceutical and biotech industries. Click here to read more about Association for Molecular Pathology v. U.S. Patent and Trademark Office.

United Airlines is entitled to adverse inference jury instruction based on employee’s deletion of Facebook account. Spoliation of evidence involves the destruction/alteration of evidence or the failure to preserve evidence for another’s examination and use in pending litigation. Courts are empowered to impose a broad range of sanctions against parties found guilty of evidence spoliation. In the trial of a personal injury suit brought by an injured United Airlines employee against the airline, the United States Magistrate instructed the jury that, in deciding the case, it was entitled to draw an adverse inference from the fact that the injured employee deleted his Facebook account to hide evidence. This is one of many decisions in which the advent of social media is impacting the litigation process in the courts.