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August 20, 2012

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Comments

Thanks for drawing our attention to this decision. I wonder how long it will be before this decision induces the same academics who complain that patents "preempt" research to increase the number of speculative statements in their journal articles in the hope of making it harder for someone to later obtain or enforce a patent.

Come to think of it, seeing as how the panel made no distinction between high-end and low-end journals, let alone between peer-reviewed and other types of literature (not that I would have expected the panel to do so, even though such differences certainly matter in the acquisition of prestige and tenure), such patent-averse people could simply start publishing unsubstantiated statements on the web to undermine others' patenting efforts. While that avenue was always available, with this decision it now has the CAFC's imprimatur.

"and other types of literature"

Dan, I don't think peer reiewed journals may even need to broach such "watering down." There is no limit as to type of literature, and arguably even comics and science fiction count, right? Does Dick Tracy's wristwatch count? How about teleporters and instant food creation devices of Star Trek? Would HG Wells's work have been fodder for examiners?

If one looks at the rationale for the extension of allowed rebuttable assumption of enablement, one can only thin that the on/off switch is inappropriate, and that a on/dimmer control is more apt (even if more problematic).

It seems at times that people WANT more confustion in patent law.

"patent-averse people could simply start publishing unsubstantiated statements on the web to undermine others' patenting efforts."

Dan,

They might do that, but I suspect it won't be that difficult to rebut the presumption of enablement if all you've got is some general statement without the specifics. For example, I'm in the chemical arts, and there's always been the question of what if a publication simply shows the chemical formula, but not the method for making it? In that instance, unless the method for making is obvious, the disclosure of the chemical formula isn't sufficient to be "enabling" for the purposes of anticipation under 35 USC 102.

I don't view this case as announcing anything that is startling. That you might have something in the "sci-fi" world be devastating prior art is already with us. The example I give in an article I wrote on "printed publication" bars of documents posted on the Internet is the story about Robert Heinlein’s famous 1930s science fiction novel, Stranger in a Strange
Land, describing the concept of a hydraulic bed made of a flexible skin filled with water which barred a much later attempt to patent the “water bed” (I got that story from Daniel H. Brean, Keeping Time Machines and Teleporters in the Public Domain: Fiction as Prior Art for Patent Examination, 7 U. PITT. J. TECH. L. & POL’Y 5, 7 (2007)).

EG,

Are you as comfortable with 103 as you are with 102?

BTW, thanks for the link!

Actually, for oligo claims we have the work of Prof. Andrew Chin at UNC, who simply put a catalogued CD-ROM in his university library containing a list of random oligonucleotides of sequence n:
http://unclaw.com/chin/scholarship/artfulpriorart.pdf
And then there is In re Gleave.
Simply put, the days of protecting diagnostic methods by simply claiming reagents is past.

Skeptical,

I'm as comfortable with this proposition with respect to 103 as I am with respect to 102. Again, if you simply have some amorphous nebulous general statement in the printed publication, how likely is it for one of ordinary skill in the art to rely on that statement as factually accurate? The fact is the Examiner can (and does) simply assert that such an amorphous nebulous general statement would motivate one of ordinary skill in the art. Our job is to factually point out the unreliability of that statement.

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