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« Becon Medical, Ltd. v. Bartlett (E.D. Pa. 2019) | Main | Hospira, Inc. v. Fresenius Kabi USA, LLC (Fed. Cir. 2020) »

January 13, 2020


"After all, the Court certainly does not want the business section of the Wall Street Journal to run the headline "Supreme Court Destroys U.S. Industry, Public at Risk, Healthcare Costs Sure to Rise.""

I share the sentiment, but neither the WSJ nor any inferior newspapers like the NYT will run such a headline: the increase in healthcare costs will be due to the lack of new medicines (e.g. an increase in antibiotic resistant infections and a lack of new antibiotics to fight them), and the continued inability to diagnose, and no one is going to attribute that to SCOTUS's jurisprudence. Most people aren't capable of connecting the dots.

I'll tell you what inhibits the practice of medicine. A lack of approved diagnostic tests, because funding was not available for projects without patent protection. To do list - letter to Thom Tillis.

Hey Kevin,

On Athena Diagnostics, a sadly expected, but frustrating response by Our Judicial Mount Olympus. Frankly, they've mucked up 101 thoroughly with their brazen judicial overreach, applying a standard of statutory construction ("implicit exceptions") unique to patent law. They're also too arrogant (or cowardly, take your pick) to admit they made a mistake, one that puts the US (as European amicus briefs have pointed out) in serious danger of violating its treaty obligations under TRIPS. The only Justice I currently respect is Neil Gorsuch, especially for his dissent in Oil States where the majority of SCOTUS (again) brazenly mischaracterized patent rights as a "public franchise." (I especially despise Breyer's, as well as Thomas' views, on patent law jurisprudence, by the way.) Is it any wonder that most of the patent bar generally has no respect for Our Judicial Mount Olympus? (My late and dear patent attorney father had a similar, extremely jaded view of SCOTUS.)

If you're expecting the Federal Circuit and especially Congress to fix this mess in 101, you're truly hoping for a pipedream, a miracle. The current Chief Judge (Prost) is generally spineless in my opinion. Only once did she (and 9 other Federal Circuit judges) in the Limelight remand unanimously dare to SCOTUS' challenge when offered the opportunity (at least thank goodness for that) to salvage 271(a) as to "whomever" meaning "more than one" infringing actor. Now that SCOTUS has made it clear its up to them or Congress (I thoroughly cringe at the thought of Congress ever doing anything but making this 101 mess worse) to push back. But I'm (pessimistically) not holding my breath for either to do what needs to be done.

Dear Kevin,

My apologies: "dare to SCOTUS' challenge" should read instead "dare to challenge SCOTUS' offer."

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