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« Court Report | Main | Health Care Professionals Contend That Isolated DNA and cDNA Are Patent Ineligible »

July 15, 2012


"This is because "it makes no sense" to apply the Court's analytic methods for assessing the patent-eligibility of a method claim to a manufacture or composition of matter claim."

Right, because we should totally allow comp/manu claims that preempt on a judicial exception whereas method claims doing the same are totally bad. People who do not understand that the judicial exceptions cut across all subject matter annoy me.

"The very language of the Court's Mayo decision, requiring an assessment of whether a claim "merely 'append[s] conventional steps' to a law of nature" does not apply because "[c]omposition of matter claims do not have 'steps.'" "

Right, they have other limitations, but not "steps" per se. So that means that it makes no sense to deny them patent eligibility while denying methods.

"[n]umerous studies [that] have refuted the claim that patents on isolated genomic DNA or cDNA molecules 'inhibit future innovation' or 'impede the flow of information.'" "

Perhaps because if Myriad knew if they actually enforced their claims against research they'd go out like a light faster than bob's your uncle?

"In addition to several cited studies supporting this argument, the brief also notes that the question of whether the scope of Myriad's DNA claims "are unduly 'preemptive' cannot be substantiated or resolved without examining what activities actually infringe such claims, something that is strikingly absent from plaintiffs' case""

Meh, kinda, kinda not. First good argument I've heard out of them in the whole trial.

"The brief also uses rapamycin and modified analogues thereof to illustrate the unnecessary complications and uncertainties that would arise should Mayo's analytical framework for assessing the patent-eligibility of method claim be unwisely extended to manufacture and composition of matter claims. "

I think they meant to say ""properly applied" as we have been failing to for the last few decades"

"The brief also is careful to remind the Court that in all these instance and others, patenting "can speed the pace of innovation by encouraging the inventor to disclose the invention and make it available to other researchers," "

I quite agree, but is it simply too much to ask for the researchers to actually invent something after they come up with their novel, non-obvious judicially exempt subject matter and then have them patent that? I don't think that is asking too much.

"The transformed cell itself being novel, the brief argues that its use "cannot be the type of 'well-understood, routine, conventional activity already engaged in by the scientific community' required by the Mayo decision to render a claim patent-ineligible.""

In other words, they do not understand the judicial exceptions at all /facepalm. Newsflash big wigs, "'well-understood, routine, conventional activity already engaged in by the scientific community'" is not, never will be, and never was "required" to invalidate a claim for claiming judicially except subject matter.

Strong patents stimulate innovation; weak patents promote copying. By ruling that DNA is patentable the court will stimulate researchers to do more than copy what others have done.

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