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« Court Report | Main | Advanced Marketing Systems, LLC v. CVS Pharmacy (E.D. Tex. 2016) »

January 31, 2016

Comments

ONE (there are indeed several) of the problems here is that the Supreme Court has been on a slippery slope with the entire 101/103 line of "reasoning" for quite some time.

The Supreme Court case at point here is KSR, and the super-empowering of Persons of Ordinary Skill In The Art to have "normal creativity."

The problem of course is what does that phrase actually mean? When you capture "creativity" and put it into the "normal," you have moved the goalposts of "invention."

The Act of 1952 made that (playing with the parameters of "invention") off limits to the judicial branch, and the notes of the then new section 103 made that clear (see also the writings of Judge Rich, who had no small part in this portion of the Act of Congress).

A not-so-subtle result in making PHOSITA into a "creative" legal person is that you now slide what remains of "inventive" into either a genius or an accident mode.

Flash of Genius was explicitly rejected by Congress.

While serendipity and accidents may yield inventions, such are simply not foreseeable and cannot be the object of a system that premises fruits of the labor of innovation through a sharing of that innovation (there is no connection to a Quid Pro Quo with the "Oops" path).

When the results of the tinkering of the Supreme Court lead directly to avenues rejected by Congress, and can be shown to align with an illicit and ultra vires expression of what amounts to writing the law, there is only one conclusion to be had.

Will Congress finally awake and see that someone else has been busy scrivining?

Sadly, I remain...

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