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December 06, 2011



What will be interesting at the oral argument tomorrow is whether the Justices (other than Breyer) give any credance to Breyer's dissent in LabCorps v. Metabolite. In my opinion, Mayo and the other "naysayers" are putting way too much emphasis on that dissent (given that two of the Justices who joined that dissent are no longer with the Supreme Court). But we'll see what happens tomorrow, as we wait anxiously to see if we get "clarity" (like in Diamond v. Chakrabarty) as opposed to "fuzziness" (like in Bilski v. Kappos) on the standard for patent-eligibility

"almost a generation ago, 35 U.S.C. § 287(c) exempted from infringement the practice of surgical methods by doctors."

If I read this section correctly, the law does not "exempt from infringement" but blocks one from pursuing a remedy, injunction, damages and attorney fees. The medical practitioner could still be infringing.

Nevertheless, we await clarity on patent-eligibility.

argument transcript:

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