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« Court Report | Main | Amicus Briefs in Support of Sequenom's Petition for Rehearing En Banc: Amarantus Bioscience Holdings, Personalis, Inc., and Population Diagnostics, Inc. »

September 14, 2015


In this practitioner's humble opinion, the panel decision misused the "routine, well-understood, and conventional" test from Mayo in a way that renders it meaningless. In Mayo, all of the claimed steps, except the abstract ones, were known in the art in exactly the combination found in the claims. In Ariosa, although the combination of claimed steps minus the abstract ones was unknown, each individual step was routine,well-understood, and conventional. Nobody had ever amplified paternal DNA from non-cellular DNA in material plasma. That is an obviousness rejection, minus the need for a motivation or reason to modify the prior art. Virtually no invention would survive such a test. The Court in Mayo never set forth such a test.


That's just one problem with legislating from the bench - the bigger problem of course is that the Court has written a law that is (and should be found to be) void for vagueness.

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