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« Court Report | Main | In re Dinsmore (Fed. Cir. 2014) »

June 09, 2014


Leo: Rader, O'Malley, Reyna
Sanofi: Newman, Linn, Wallach
Hoffman-LaRoche: Lourie and Bryson vs Newman

The take-away here - which I think has been clear to CAFC watchers for a long time - is that if you're a pharma patent holder and you've got any combination of Lourie, Byrson and Prost on your panel you're doomed. If you've got Newman or Rader you at least have a fighting chance.

Thanks for the synopsis.

This just goes to show the infection of 101 is alive and well in 103.

Whenever a judicial body takes it onto itself to weigh "scintillas" and "sufficiency" and declare "well it was obvious" - especially when a dissent strongly says otherwise, my view that the rule of law laid down by such a decision can provide ANY meaning going forward is, well...

The decisions all point towards the need clear elucidation of strong arguments for non-obviousness early in the game. Whatever you do during prosecution, if there is enough money at stake during litigation, your opponent will be making a case for obviousness. That was true before KSR, but it is easier for the opponent after KSR.

The simplest statement of the state of patent law is this:

No person alive can look at any patent and the closest cited references, and conclude, with certainty, that it will be upheld by any U.S. court of law.

The entire body of patent law is collapsing into a smell test - a totally subjective judgment, bolstered by using terms like "obvious," "technical," and "abstract" that have absolutely no defined meaning.

This is the product of:

1) The inability of Congress to pass any measure that makes patent law more definite;

2) The complete lack of leadership of the U.S. Patent & Trademark Office in clarifying these issues over the last 20 years;

3) The ridiculous bickering and politics within the Federal Circuit, which can't develop a consensus on the color of the sky; and

4) Decades of meddling by the Supreme Court, which happily tears down any objective standard of patentability while refusing to rebuild any of them.


You've been living in a closet if you think Lourie is anti-pharma patent.

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