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« Guest Post -- Patent Exhaustion and Pharmaceuticals | Main | Webinar on TC Heartland »

October 12, 2017


Any decision citing Funk Brothers without attention to the detailed circumstances of that case and the actual holding is inherently highly suspect. In truth, Funk Brothers was about inventive step now 103 not eligibility now 101. Also you have to appreciate that the claim there covered all mixtures of non-interfering bacteria without disclosure in the specification of any specific bacteria that could be mixed together and would perform as described.

Disregarding dosage requirements is also highly suspect on the all elements rule.

Hey Don,

The patent-ineligibility ruling in this case is absurd-unit dosage form claims have existed for decades. More evidence that the nonsensical Mayo/Alice framework is broken. If only Congress would listen and neuter this absurd SCOTUS standard for patent-eligibility.

How does the "all elements" rule stack up against the leading edge of the "Gist/Abstract" sword?

Is it not clear that the Court has disregarded the words of Congress (our 112) as to exactly who gets to define what the invention is?

When the Court wants to, it simply intrudes and waves its arms and says, "No, the REAL invention is this "gisted" thing and not what the claim actually states."

All elements...?

What is that (to the Court)...?

I profoundly agree with Skeptical regarding the "all elements" rule and the words "directed to" which are apt to be distorted to "focus". The court constructs a straw man by paraphrasing the claim and then judges the straw man of its own creation rather than the reality of the subject matter claimed.

The point was strongly made in my amicus brief to the Federal Circuit in Recognicorp, which so far unfortunately has cur no ice.

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