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« Arthrex, Inc. v. Smith & Nephew, Inc. (Fed. Cir. 2018) | Main | Berkheimer v. HP Inc. (Fed. Cir. 2018) »

February 07, 2018


The scoreboard is broken.

Whether or not something is conventional is handled under the patent laws of 102 and 103.

Conventionally should be absent from considerations of eligibility - as eligibility is a timeless factor and conventionality is a time-dependent factor.

I other words, something CANNOT be eligible because of non-conventionality “one day” and then become not eligible because the initial thing is well revived, put into use and becomes conventional.

That is simply not what the purpose of 35 USC 101 was drafted BY Congress to serve.

Correct for auto-correct:
“revived” should read as “received”

"In a bit of an ironic outcome, the U.S. government was unsuccessful in invalidating U.S. patents. . . . It seems odd that the government issued the patents on the one hand, and later, tried to invalidate them."

Joe, that happens almost every time a patent infringement case is brought in that court (Fed. Cl. Ct.). And it has done so for years.

Mr. Stern,

The courts should not be "trying to invalidate" as you seem to imply.

The difference here: this case was in the Court of Claims and the Defendant was the United States.

There is a world of difference between a NEUTRAL ARBITER and a party "trying to invalidate."

Granted, given the animus from the Supreme Court, one might be forgiven for misplacing the notion of the "neutral arbiter" - and that is even more an indictment AGAINST the legislating from the bench and the lack of respect for separation of powers that the Supreme Court has rendered with its intrusions into 35 USC 101.

However, given the nature of your own "advocacy" (vis a vis Benson and the like), that you recognize THIS reason as one of abiding concern, well, I remain:

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