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« Does the Myriad Decision Presage a Golden Age of Patent-Free Personalized Medicine? | Main | ACI Legal and Regulatory Summit on Generic Drugs »

June 20, 2013

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Comments

From the day the opinion came down and every day since then, KSR's "guidance" that if there are a finite number of identified, predictable solutions something might be obvious to try appeared to be part of a new and open sanctioning of hindsight. That opinion fully acknowledges KSR's (very feeble) admonition to avoid hindsight.

Of course, there are always a "finite" number of identified solutions. That is just freshman year math. That is, unless court-defined finite is something other than math-defined finite, which includes, e.g. 10 to the 100,000th power solutions and other interesting, much bigger numbers. This is usually the case even when there are literally unknown trillions of solutions, e.g., chemical compounds within a massive genus with 10 variable groups or methods of use for all those compounds, are not at least prior art identified in terms of written description that could come anywhere close to support a claim. It's the good old and always reliable "I know what's obvious when I see it (in hindsight)" logic. Sort of like the old porn argument. Sort of.

Now with synergy arguably being considered predictable, the institutionalization of hindsight in the chemical/pharmaceutical arenas (not necessarily others) is essentially complete. Maybe a few cracks are left that need a bit of spackling. It all fully accords with current experience. Routine practice now is mostly bickering endlessly over hindsight, usually seeing the evidence ignored (sometimes even openly mocked as "self-serving") and then filing appeal briefs. At least the win rate on appeal has been acceptable up to now. Might this decision tip things the other way? Time will tell if this ugly case will grow legs or not.

It is up to congress to fix the mess. The courts just can't do it. Under current guidance, they can only make it worse.

GD,

When you state "At least the win rate on appeal has been acceptable up to now," I think that indicates that THAT too will not last.

The New Appeal Justices (as I am appointing them by their actions) will be writing the law they want to use - and it is not a pro-patent law.

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