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February 12, 2019


Hey Don,

Another horrible decision by the Federal Circuit which is eventually going to doom any research or development of diagnostics. Even the majority agrees with Newman's dissent that SCOTUS' Mayo decision is awful, but hasn't got the guts to challenge it. The Federal Circuit, as a whole, simply needs to buck the application of the ill-advised and nonsensical Mayo decision to medical diagnostics and dare SCOTUS to take cert to fix the mess it's created.


I would have to distinguish your view by pointing out a deeper and more pernicious take on the current case.

To say "we have no choice" is a L I E.

Not only IS there such choice, but given the (growing awareness) that such choices HAVE BEEN MADE in a seriously growing sense of contradictions (as I have noted with the occasional "ping pong" comments), there is a more fundamental problem with how Common Law has intersected (and in actuality, scrivined over) the statutory law.

There IS a lack of guts for challenging the Supreme Court.

That lack of guts is NOT limited to the CAFC.

As I have ALSO noted, every attorney (outside of arguably the attorneys under the State Oath of Massachusetts), has a DUTY to not put the Supreme Court ABOVE the Constitution (and thus, to speak out when the Supreme Court has acted improperly).

One ignores Newman at one's peril.

Having said that ... yes, Mayo was a bad decision, but a successful challenge or reversal needs to take some history and neo-reactionary judicial philosophy into account.

Mayo conflated the subject-matter and obviousness tests of the common law. Congress explicitly separated them in 101 and 103 of the 1952 act.

However ... the 1952 act was intended to codify the common law. It can be argued (very wrongly, IMO) that Congress did not intend to and did not change the interaction between the two.

SCOTUS got off track when, ten years ago, J. Thomas suggested in dictum there was a constitutional standard for obviousness. Mayo explicitly held there was one for subject matter.

The mess has been coming for a long time, kids. The answer isn't challenge, it's replace.

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