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November 18, 2009



Chisum is probably right that we need to pay a bit more attention to SCOTUS precedent, especially the recent precedent. But the trouble is that what SCOTUS has recently said is so murky and muddled that, until the Federal Circuit "refines" it, we've got no clue where the law is going. KSR International is an awful example of this problem. SCOTUS has no more clarified the standard for patentability under 35 USC 103 in KSR International than Graham did 40 years ago.

At this point, I'm hopeful, based on the Bilski oral argument, that SCOTUS won't do anything particularly "harmful" regarding "patent-eligible" subject matter under 35 USC 101. But I still "shudder" somewhat at how certain members of SCOTUS conflate (and confuse) "patent-eligible" with "patentable" under 35 USC 102/103. What would really make me "gasp" is if they took an "inequitable conduct" case. No telling what SCOTUS would do to make the standard for "inequitable conduct" unfathomable for us "mere mortal" patent attorneys.

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