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January 08, 2017

Comments

Hey Don,

Listing the denial by Our Judicial Mount Olympus of Sequenom's petition for cert was definitely the No. 1 story for 2017, and utterly shameful cowardice and neglect on their part for creating this mess in the first place. Time to strip SCOTUS of any appellate review in patent cases.

There is a famous piece of dialogue in the Sherlock Holmes Story Silver Blaze:

“Is there any point to which you would wish to draw my attention?”
“To the curious incident of the dog in the night-time.”
“The dog did nothing in the night-time.”
“That was the curious incident,” remarked Sherlock Holmes.

So what can we learn from the curious incident of denial of certiorari in Ariosa, where the number, content and sources of the many amicus briefs strongly suggested that the petition would be granted? That requires consideration of what principles of law flow from the earlier cases considered as a whole, and what is argued in the various briefs, including the amicus briefs considered collectively. What would the Justices and their clerks thought of them?

There is no point in throwing about allegations of cowardice or neglect unless and until proper legal analysis has been carried out. For example, at a recent conference in the US I asked about 15 biotechnology attorneys under what category within 35 USC 101 an isolated sequence of naturally occurring DNA might be eligible. There is an undoubtedly correct answer from previous case law, and none of them gave it.

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