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« USPTO Announces Further Extension of Certain Patent Deadlines for Small and Micro Entities | Main | Supreme Court Denies Certiorari in Actavis Laboratories v. Nalproprion Pharmaceuticals »

May 28, 2020

Comments

Lacking enablement is a 112 issue.

Implausible utility (IF the lack is SO severe) is a 101 issue.

The Common Law remains confused on this distinction.

Skeptical correctly notes that §112 would have been the pre-Alice basis for invalidating these claims, but why bother with all the technical arguments and dueling experts when SCOTUS has turned §101 into a weapon that can blow up a patent regardless of the adequacy of the spec, or the invention's novelty, non-obviouness, and utility?

Mr. Demers,

You alight upon both the power and the criticism of what the judicial branch has REWRITTEN the statutory law of 35 USC 101 into:

It is an UNKNOWABLE IN ADVANCE (and as we have seen, heavily panel dependent) "I know it when I see it" unmoored power of judicial edict entirely disassociated with anything remotely cogent to the actual writing of 35 USC and the two aspects captured there: that the innovation may be phrased (AT the choice of the innovator rather than a judge - even as this may offend the sense of the court and their ultra vires watchdog attitude towards 'Scriviners'), and that the innovation have utility within the Useful Arts.

ANYTHING else is simply muckery.

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