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July 06, 2016

Comments

A step in the right direction.

*According to the District Court, the claim was "directed to an ineligible law of nature" (the "discovery" that hepatocytes could be subjected to multiple freeze/thaw cycles)*
The District Court's conclusion is a good example of how far the "law of nature" exception has been stretched. Frozen hepatocytes do not occur in nature.

"Frozen hepatocytes do not occur in nature."

Every dead mammal lying under the frozen tundra begs to differ.

Really, Malcolom? Because I see several steps in the claim, and I don't see centrifuging hepatocytes to separate them and then re-freezing them occurring in nature. But perhaps you're someone who enjoys playing with cats by spinning them wildly by their tails and then burying them in the ground just before the temperature goes below 0 Celsius. I still don't see how that would meet the claim language though.

The good news is that here not only did the Federal Circuit get it right, but Judge Prost, not normally given to limiting the effect of silly SCOTUS decisions, appears to have come around on this one and is no longer working full-time for the Dark Side.

Let me play the devil's advocate here for a moment.

The Discovery was that there was a certain level of cells that remain viable after a second freezing.

There is no "hand of man" in that discovery. The attribute is, was, and ever shall be, merely an attribute of the cells themselves.

There is also NOTHING new in the sense of the steps being taken with the process.

Sure, the steps are being taken, but nowhere are there steps - in and of themselves - that were not taken previously.

How does this survive the general notion of the Supreme Court "test" of "no patent for a mere discovery and the words 'apply it' using nothing more than techniques already known"...?

It seems a bit tenuous to put so much emphasis on the aspect of "well, here, we froze TWICE" as that is nothing more than the simplest of "just apply it" to the actual discovery that TWICE frozen cells are viable.

(again, this is me playing the Devil's Advocate: please feel free to poke holes in this)

I wonder whether cancer patients would consider that being given a prognosis that treatment x will not work but treatment Y will give them a 40% chance of another 10 years is not tangible.

Motel 6, your dead mammoths do not contain live hepatocytes - I stand by my comment.

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