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March 13, 2013


"Finally, as has been discussed in previous posts, it is a waste of paper to argue to this Court deference to Congress on such matters, particularly when it is inaction, rather than affirmative action, that is the basis for the argument."

No it's not. That argument worked in i4i.


I think the comment should be placed in context of the audiance and how receptive they are to the argument in the given context.

For the arguments provided (in this context), after Prometheus, it is apparent that the Court is going to be, well,


Dear Kip:

What worked in i4i was that i4i's position was consistent with Justice Cardozo's. If it had not been I think the Court might have come to another conclusion.

Thanks for the comment.

Eeeh... I think there's actually much more of a basic research exemption in our law than we realize. It's just never been tested, because nobody's getting sued for doing basic research anyway.
Madey at best stands for the proposition that you can't fire a disgruntled faculty member and keep using his patented stuff. I'm confortable with that.


More "tone deafness," now from the AIPLA. As you and Joe Allen keep telling us, we in the patent profession need to learn how to switch gears.

Dear Moo:

If the brief argued that there was a de facto basic research exemption I would agree. But it argues for a judicially recognized experimental use exception, which is a different matter.

And, I would think this was a mountain/molehill situation if it wasn't given such prominence in the brief.

Thanks for the comment.

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