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« Conference & CLE Calendar | Main | Amerigen Pharmaceuticals Ltd. v. UCB Pharma GmbH (Fed. Cir. 2019) »

January 20, 2019


I have already pointed out that the problem is NOT the making of the executive branch, but rather the making of contradictory Common Law by the judicial branch.

Iancu expressly states that the state of the Common Law written law is contradictory.

His problem is that he does not take a stand against the contradictions (even after noting them) and instead attempts to weave a layered approach (and attempts to integrate those same contradictions together).

One cannot make the contradictions go away with such sleight of hand.

The contradictions remain.

Notably, you use the example of Diehr, which itself could be viewed as an epitome of contradictions, given that the Court expressed that not only was it NOT overturning Diehr, not only was it the case “most on point” (in a recent case), but then the Court rendered a decision incompatible with Diehr.

The Difector’s attempt at layering is not a FAIL for the attempt to feature layering. It is a FAIL for trying to include the contradictions at Common Law.

Secondarily, it is also a FAIL because in no way does it (can it) control the CONTINUED failings of Common Law to be contradictory (vis a vis the ping pong nature of panel to panel — at the CAFC — or any of the myriad [pun intended] district court (I know it when I see it) court cases.

It is wrong — egregiously wrong — to attempt to use Common Law law writing to rewrite the statutory law.

The (remaining ongoing) judicial-induced debacle has “severe practical consequences” - including now an executive notice of the contradictions in the Common Law (and as you deftly point out, the inability to truly avoid those contradictions, even with a layered approach)

and thus, NONE of 1) the starting point of the Supreme Court muckery, none of the other Judcial Branch Common Law law-writing, and none of the Executive Branch “applying” of the Common Law two-step mechanism (in this guidance or truthfully, in ANY guidance) will or can suffice. There is to be (and remain) a “generation of no reliance.”

So these three factors ring a bell?

Let’s hope so.

According Bilski Supreme Court decision "The §101 patent-eligibility inquiry is only a threshold test. Even if an invention qualifies as a process, machine, manufacture, or composition of matter, in order to receivethe Patent Act’s protection the claimed invention must also satisfy “the conditions and requirements of this title.” §101. Those requirements include that the invention be novel, see §102, nonobvious, see §103, and fully and particularly described, see §112. https://www.supremecourt.gov/opinions/09pdf/08-964.pdf

According Bilski case the analysis of 101 and 102 are independent. So while Bilski case make an effort to establish a clear borderline between 101 / 102 criteria this example 41 clear mix both.

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