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« Court Report | Main | Court Report - Part II »

December 12, 2010

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James,

An interesting brief by UNH. That this brief addresses the issues of appropriateness for summary judgment, presumption of patent validity and even the relevance of policy considerations in determining patent-eligibility is fairly unique for the briefs submitted so far. The issues addressed by the UNH brief simply underscore how "off the rails" Sweet's ruling is.

"the brief criticizes the additional imposed exclusion on patent eligibility if the composition of matter "serves as the physical embodiment of the laws of nature." The brief notes that no Supreme Court decision or Federal Circuit panel has established this limitation, citing the decision in Funk Bros. as the closest decision that can be read in such a way. "

Of course no USSC decision or Fed. Circ. panel has established that limitation. Instead, they established the limitation that if a law of nature is wholly preempt then the claim is excluded.

That appears to be something that may have gone on in some cases. I thus applaud the judge for seeing past your nonsense, professors.

"Indeed, isolated DNA can acquire many different uses and can serve ends that DNA as it exists in nature cannot provide."

And that matters how? ... o wait, it doesn't.

"The dispute over the term "isolated" raises issues of material fact. According to the appellees, isolated DNA is defined as a "fragment of DNA found on chromosome," whereas the appellants have defined isolated DNA as "removed from its naturally occurring environment," requiring "excision from the chromosome."

Now claim construction is an issue of material fact... aye yaey aye.

"Clearly, the appellees' definition implies that DNA fragments can be removed without any change in structure or function. This is not the case, as DNA removed from the genome has several different functions."

Again, change in function matters why? Oh yeah, again, it doesn't.

" The existence of these disputed facts, which must be viewed as evidence in favor of the appellants as the parties opposing the motion, renders the summary judgment finding by the District Court improper."

I don't think anyone disputed those facts at all. They only disputed claim construction, which, IF I RECALL, is a matter o' lawl not fact. That there are different definitions of the term is not disputed I doubt. That one of them is properly applied here in claim construction however is disputed, and is a matter o' lawl.

Go d Kev, where did you drag these "professors" up from? Is " University of New Hampshire School of Law" some 3rd tier nowhere?

"An interesting brief by UNH. That this brief addresses the issues of appropriateness for summary judgment, presumption of patent validity and even the relevance of policy considerations in determining patent-eligibility is fairly unique for the briefs submitted so far. "

Because they're all non-starters? Mhmm, probably.

"Because they're all non-starters?"

6,

Only to you. Neglecting to address the proper standards for summary judgment and the presumption of validity isn't going to win Sweet any brownie points with the Federal Circuit. The fact is that Sweet's ruling is going to be trounced, including for reasons stated in the UNH brief.

"Is University of New Hampshire School of Law some 3rd tier nowhere?"

6,

Those of us in the IP field who know the former Franklin Pierce School of Law (founded by a patent attorney) quite well as one of the premiere institutions specializing in IP law would find your remark extremely insulting. For example, do you know who Karl Jorda is? Well, he's now Professor Emeritus from UNH and a former Chief IP Counsel for Ciba-Geigy. Karl is well known and well-respected in the IP world. Do you know who Karen Hersey is? She's now a professor at UNH and formerly counsel for the MIT's TTO and a former president of AUTM. Your ignornace of some IP basics is showing again.

"For example, do you know who Karl Jorda is?"

I'm guessing a keeper of your patent faith. A priest among your peoples. Or perhaps a high-priest?

"Well, he's now Professor Emeritus from UNH and a former Chief IP Counsel for Ciba-Geigy. "

I see I was right the first time! A mere keeper of the faith.

"Do you know who Karen Hersey is?"

I'm going to guess a high priestess keeper of the faith. But my original leaning was towards "a virgin sacrifice to your foul go ds".

"She's now a professor at UNH and formerly counsel for the MIT's TTO and a former president of AUTM."

I see I was right :(

"Those of us in the IP field who know the former Franklin Pierce School of Law (founded by a patent attorney) quite well as one of the premiere institutions specializing in IP law would find your remark extremely insulting."

I've heard of the old Franklin Pierce School. If this is that place, they're going downhill. Fast :( Maybe they should have just kept the name?

Tell me EG, is claim construction a matter of lawl or of fact?

You're right that his forgetting to explicitly lay out the proper standards could be an issue, but it won't be, precisely for the reasons I laid out above.

"Your ignornace of some IP basics is showing again"

Whereas your blatantly ignoring some IP basics is showing again.

Should we call it even?

Did I stumble across Patently-O by mistake?

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