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« Wyeth v. Abbott Laboratories (Fed. Cir. 2013) | Main | Mutual Pharmaceutical Co. v. Bartlett (2013) »

June 27, 2013



What have here is a power struggle between the Supreme Court and the Federal Circuit over who will be the primary arbiter of patent law jurisprudence In this Ultramercial decision, Chief Judge Rader has definitely thrown the “gauntlet” down before the Supreme Court to either clarify their "fuzzy" Bilski decision, or “shut up” and let the Federal Circuit do the job that Congress intended it to do when it was created back in 1982, namely to be the primary arbiter of patent law jurisprudence. It remains to be seen whether the Supreme Court will take up the “gauntlet” thrown down by Rader.

Much better write up than Lemley's over on Patently-O. Lemley ignores the procedural posture -- that all factual inferences resolved in favor of the patentee at the 12(b)(6) stage -- and babbles on about importing limitations from the specification. Applying this case will be tough based on the odd pseudo-construction the court had to use to evaluate under 101.

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