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« Association for Molecular Pathology v. United States Patent and Trademark Office (Fed. Cir. 2011) | Main | Mitsubishi Chemical Corp. v. Barr Laboratories, Inc. (Fed. Cir. 2011) »

August 02, 2011



Nice summary of Judge Moore's concurring opinion. While we may not be happy with Moore considering isolated gene sequences not to be patent-eligible on a strict structure/chemical/molecular biology basis, she at least recognizes the reality of overturning what the USPTO has done for 30 or so years in granting patents to isolated gene sequences. Compared to her horrible Classen "microopinion," Moore's concurrence here is a definite step up. She appears to be "growing-up" as a Federal Circuit judge and I applaud her for that.

I know I am months behind the times, but I like how Moore takes a more detailed (albeit messier) approach than the majority, and scrutinizes the isolated DNA claims in three separate classes, because her analysis leaves no doubt that at the very least, cDNA claims are patentable no matter how you look at them.

I also find it hard to disagree with Moore that isolated DNA claims to the full gene sequence are much fuzzier w.r.t. patentability. By stating as much, and then resorting to historical precedent, at least she is calling a spade a spade.

Interestingly, after she goes through her analysis, her dismissal of the magic microscope in part IV of her concurrence involves bolstering the majority's chemical differences test. So although she concurred in the judgment, I am not convinced that she ultimately falls appreciably far from the majority at all.

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