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« Amicus Briefs in Support of Sequenom's Petition for Rehearing En Banc: BIO and PhRMA | Main | Webinar on Patent Prosecution Strategies »

September 17, 2015


"can't it correctly be said that what the Diehr majority feared from the dissenters' approach has come to pass under Mayo/Alice"

Are you suggesting that claims like the one Prometheus asserted, i.e., gather data using old technology and think a non-obvious thought about the meaning of the data, should be eligible for patenting?

"To which the economist responds, "Let's assume we have a can opener, and from there the solution is easy."

The distinction between this "joke" and "reality", of course, is that (1) PCR was well-known when this application was filed; (2) it was well-known at the time the application was filed that PCR could be used to amplify and detect extraordinarily small concentrations of nucleic acid;(3) it was well known that DNA could be PCR'd from maternal serum (there's special about maternal serum that "blocks" the PCR reaction; (4) it was known as of the filing date that fetal cells and fetal cell debris existed in the maternal blood stream (5) it was well-known as of the filing date that where cells and cell debris can be found, there is an extremely high likelihood that PCR-detectable DNA can be found absent some special PCR-blocking circumstances (see (3) above).

The misrepresentations promoted by Sequenom and its amici are just as transparent and self-serving as those promoted by the supporters of Prometheus' claims and Myriad's claims not too long ago. For instance, I read somewhere where Sequenom's claimed subject matter "saved women's lives" because the alternative is amniocentesis. In fact, as of the filing date of Sequenom's claims it was known that you could isolate fetal cells from maternal blood. Moreover, the medical community doesn't consider amniocentesis to be a "dangerous" procedure; rather, it's considered to be safe and simple.

I think I also read somewhere that the Sequenom's named "inventors" were going to get a Noble Prize. Seriously? Has the bar for the Nobel Prize been dropped that low? Or are the folks out there who truly love Sequenom's patent reaching really high?

Lastly, I'd like to point out the astute comment from "Bruce" on an earlier thread: http://www.patentdocs.org/2014/09/ptab-decides-inter-partes-review-of-patent-at-issue-in-ariosa-v-sequenom.html#comments

These are the facts. You can try to ignore them all you want but they aren't going away. And a friendly reminder: ignoring the facts didn't work very well for the folks who loved Prometheus' and Myriads' junk claims either.

But please feel free to continue writing your self-serving press releases if you think that's going to work.

I am reminded of a comment I made some years ago on this subject when the Mayo decision first came out.

A four year old child is given a CD on which is recorded some family videos not previously seen by members of the family. When the family player is empty, from the section 101 standpoint it is a patent-eligible machine but lacks novelty. When the disk is inserted the combination of player and CD is novel but is ineligible because the only novelty is in the ineligible recording on the disk.

The four-year old can have endless fun switching the player from an eligible/anticipated state to a novel/ineligible state and back again by inserting and removing the CD from the player.

Or perhaps there are more sensible and practical ways of applying the law.

September 18, 2015: Paul Cole comes *this* close to realizing that patent claims with different scope raise different legal issues.

That chap Pharaoh was a complete idiot to be taken in by that con-man Joseph. As if there was any economic or practical value in the interpretation of dreams. Putting con-man Joseph in charge of his kingdom indeed, so that he was over everyone except Pharaoh! All that stuff in Genesis is complete tosh. Nobody should behave like Pharaoh did.

About three millennia later that fool Andrew Lloyd-Weber wrote a musical called Joseph and his Amazing Technicolor Dreamcoat about these events, deceiving generations of children about the value of interpretation.

We now know better. The Supreme Court has told us that interpretations are of no value, mere discoveries of natural phenomena that should be available to everyone with no reward to the discoverer. So there the law stands. We can be resistant to con-men who allege that they have performed a service by interpreting as blood test so that better but intrinsically hazardous drugs can be administered to needy patients. It should all be free. Why reward the discoverers?

September 18, 2015: Paul Cole demonstrates to the everyone that, in his view, the only meaningful rewards for scientific research come in the form of government-granted patent rights.

This will come as a great surprise to most intelligent scientists, very very few of whom Paul Cole appears to have ever met.

"Memory Motel" = MM = Malcolm Mooney. A pity this blog is being infected like Patentlyo.

It's curious how transparent Malcolm's actions are, no matter which new sockpuppet he creates here.

It's also curious how venomous he is towards those selfsame "suckies" at Patently-O, yet how extensively he uses that rhetorical device (while claiming not to).

It is perhaps that he does not have a strong legal/factual basis of wanting the law to be aligned with his opinion/philosophy that compels him to act so.

As they say:
When you have the law, pound the law.
When you have the facts, pound the facts.
When you have neither, pound the table.

MM sure likes to pound the table.

Does he realize how weak and transparent that is?

I remain...


I fear you're correct that the Malcolm/MM "virus" has again infected Patent Docs.

All: We welcome comments from all, so long as the comments remain civil and further the conversation. There are no worries about disagreements - we welcome them as it is the best way to get some measure of clarity.

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