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« PTAB Life Sciences Report -- Part IV | Main | Bayer CropScience AG and Bayer S.A.S. v. Dow Agrosciences LLC (Fed. Cir. 2017) »

March 21, 2017


With respect to SCOTUS’ decision in SCA Hygiene Products, consider that oral argument in Impression Products v. Lexmark occurred yesterday relating to patent exhaustion/first sale doctrine. No mention was made by the advocates or the Justices of SCA Hygiene Products during the oral argument. That’s very odd, given that there is also a parallel copyright case (Kirtsaeng) on copyright exhaustion/first sale doctrine, although in the copyright, the first sale doctrine is statutory whereas there is no corresponding patent statute. It’ll be interesting as to whether SCOTUS also sees this parallel between SCA Hygiene Products and Impression Products.

As far a Breyer's dissent goes, he remains consistent-he's yet to see a patent he likes. Breyer is the most virulently anti-patent of the SCOTUS Justices, on par with William O. Douglas. Breyer’s Mayo v. Prometheus opinion remains an outrage for not only screwing up the law on patent-eligibility, but for also factually misstating that a “law of nature” was involved, given that the drug whose metabolites were being monitored didn’t exist in “nature.” Go figure.

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