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« Is Claim Construction the Key to Patent-eligibility of Isolated DNA? | Main | Biotech/Pharma Docket »

August 24, 2011

Comments

Kevin,

Well, we’ve now gone from Bizarre Bilski to Crazy Cybersource. Why can't the courts, including the Federal Circuit, start the claim analysis with 35 USC 102/103 (or in my opinion, with 35 USC 112), instead of starting with "there is no objective test" 35 USC 101? This panel should of heeded the warning in Research Corps. that the claimed invention should be "manifestly abstract" before invoking 35 USC 101

The fact that this panel consisted of Judges Dyk and Bryson didn't help here either, as both have already stated their penchant for invoking "subjective view" patent-ineligibility under 35 USC 101 with respect to isolated gene sequences. I wouldn't be surprised if Cybersource ended up being before the en banc Federal Circuit where it could be a real judicial "donnybrook" on this issue of what claimed processes are (and are not) simply directed to a "mental step" (another warning from Research Corps. that wasn't heeded here either).

"DNA is not a software program, of course: the information content is not patented (as opposed to the patenting of a program) and said information is embodied in a biological molecule having a distinctive structure that is different from its structure as found in nature (including the difference that useful quantities of the isolated DNA can be specifically made). "

This is an obvious and categorical distinction that can be made between DNA and software and one that will be recognized and understood by most judges on the CAFC and the Supreme Court.

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