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« Government Sticks to Its Guns in Bowman v. Monsanto Amicus Brief | Main | BayhDol25 Files Amicus Brief in Bowman v. Monsanto »

January 29, 2013


Both decisions are of course wrong.
The expression in parentheses with a subscript means always, either in chemistry or in any other science (except apparently in legal science), the repetition of an homologous group. Even a disclaimer cannot overcome universal rules, moreover taking into account that the number of variables available (Rx) is illimitable.
Chemist tip: save yourself from trouble by just following IUPAC (Internation Union of Pure and Applied Chemistry)rules.

Their expert, "whose prevarication and inconsistency were repeatedly demonstrated during Allergan’s cross examination," relied on a reference that he'd disparaged (in an earlier trial) as unreliable. Thus shot down, "Defendants in this case clearly present a different theory of obviousness post-trial than was presented at trial."

"Ouch!" indeed.

A lesson here, in the vetting and prepping of expert witnesses, that should be of interest to everybody -- not just the chemists in the audience.

"Both decisions are of course wrong." Maybe on the planet Bizarro; here on Earth in the USA, they're both right. As Michael noted, the patentee could have saved itself time and money if it had just said "R4 is independently at each occurrence selected from...", but there's support in the specification for concluding, as CAFC did, that this is what the patentee meant, even though it didn't explicitly use those words. And with the only testimony left before the court stating that no one would have considered using an analogous amide as a prodrug, the conclusion that changing the ester to an amide was not obvious was the only conclusion to be drawn.

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