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« IPO Webinar on Significant Patent Cases for 2019 | Main | Solicitor General Files Brief in Berkheimer v. HP »

December 08, 2019


An important and significant opinion that will be of value in the Athena case.

The brief by the Solicitor General is worth a read, if only as a nice recap of the mess in which Section 101 presently finds itself. (No fault on the part of Section 101 as it's worded, though.)

The true scope of the patent law has been substantially confused by the Supreme Court's decisions to effectively strip from the statute the word "discoveries."

Both 35 U.S.C. 101 and Article I Section 8 Clause 8 of the Constitution permit patenting of discoveries. Thus, there appears to be no textual support for excising that word from the statute and for holding that all "discoveries" are necessarily unpatentable subject matter.

The Vanda court noted that the limitation of a claim based on the patient's condition is well within the ambit of the law. The Solicitor General's comment to retain the brief awaiting a more suitable vehicle, simply "kicks the can."

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