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December 20, 2017

Comments

I am not certain that "overlooked" is the proper adjective given that such a word begs hindsight backwards through a time that was "clearly" muddled. Even today, there is NO clear vision on how 101 will be applied.

Who knows what will drive any particular district judge.

Who knows which panel one might draw at the CAFC (as law applied there has ping-ponged vigorously).

The lack of taking cert on cases that MAY provide clarity only guarantees a continued soupy morass.

It's up to Congress to clear this whole judge-made mess up.

Are they up for it?

Sadly, I am:

Rapid Litigation Management Ltd., v. Cellzdirect, Inc. certainly provided a glimmer of hope, but I'm less optimistic that diagnostic test claims could be successfully patterned after that precedent. In my experience, most examiners will deem the associated lab methods simply as routine and conventional, and dispose of that context to then conclude ineligibility once more.

Without revised 101, capriciousness will continue to reign.

Expat,

Let me correct you: no matter the revision to 101, the (Supreme Court) capriciousness will continue to reign.

There IS a solution within the grasp of Congress (and it relies on the Constitutional power of jurisdiction stripping of non-original jurisdiction matters, and the fact that patent matters are NOT a matter of original jurisdiction for the US Supreme Court).

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