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June 20, 2018

Comments

Hey Kevin,

As usual, the Royal Nine create uncertainty and chaos in our nook of the law and then refuse to clean up the mess they've created in their wake. What a bunch of cowards, undeserving to be called SCOTUS.

Another reason the Sup. Ct. predictably does not want to take up more cases on this same subject is that to them this is just one special aspect of one small and specialized corner of the law. [Not nearly as "important" to them and the public as refusing to make a wedding cake for someone, for example.]

I would have been delighted to see them take cert on Cleveland Clinic, but honestly a more perfect case than Ariosa v Sequenom could not be imagined. If they were not willing to take cert on that one, I cannot see why they would have taken Cleveland Clinic. I predict that this Court is done with §101, and that they are not going to take any more §101 cases for at least another 15 years (once Breyer, Thomas, and Kennedy are off the Court).

That is probably for the best, by the way. These justices just make ever more a hash of §101 each time they touch the subject, so if they were to take a new §101 case, it would just make things worse in all likelihood. Meanwhile, now that the CAFC sees that the SCotUS is disinclined to take any more §101 cases, the CAFC are beginning to feel safe in slowly pushing the §101 law back towards where it had been before Mayo.

Greg: agreed except recent SCOTUS history as well as PTO implementation of these decisions creates uncertainty inconsistent with patent-dependent investment over a 20 year term. We need 1) a statute of repose for post-grant review and 2) an end to retroactive application of court decisions against granted patents.

Claim 11 is also likely indefinite.

What exactly is the bodily sample? Is it one of, or does it require a collection of each, "said bodily sample being blood, serum, plasma, blood leukocytes selected from the group consisting of neutrophils, monocytes, subpopulations of neutrophils, and sub-populations of monocytes, or any combination thereo[f]"?

Does the bodily sample require collectively, a blood sample, a serum sample, plasma sample and one of the Markush listed blood leukocytes"


I understand that the spec may answer this question, but claims need to be drafted with more precision.

To be worth going to the Supreme Court you need a good case. Ariosa was such a case, and it is unfortunate that it was not taken up as Judge Linn intended. Just reading the Cleveland Clinic claim, it does not seem as strong.

"[R]ecent SCOTUS history as well as PTO implementation of these decisions creates uncertainty inconsistent with patent-dependent investment over a 20 year term."

I agree entirely. Unfortunately, I think it is a bit much to hope that the SCotUS will provide the solution to this problem.

I know at lot of folks are hoping that the Court will take one of these §101 cases (Sequenom, Recognicorp, Cleveland Clinic) to resolve the mess that it has made in Mayo/Alice, in the same way that it took Diehr to resolve (at least partially) the mess that it had made in Benson & Flook. I think that those hoping for such a resolution to the present problem are kidding themselves. The Court *likes* what it sees so far.

I agree that solutions are needed to the problems that you mention, Dr. Noonan. I believe, however, that those solutions are going to come from the Congress or not at all. The SCotUS is not going to solve these problems.

The comments to this entry are closed.

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