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« Argentum Pharmaceuticals LLC v. Novartis Pharmaceuticals Corp. (Fed. Cir. 2020) | Main | Pfizer Inc. v. Chugai Pharmaceuticals Co. (Fed. Cir. 2020) »

May 04, 2020


We might usefully search for a hook on which to hang objections to this decision, with an underlying suspicion that there might be something fishy about it.

More seriously, we might usefully consider the essentially fishy nature of the Ariosa decision that was strongly relied on by the court. There appears to be little jurisprudence about the precedential quality of a decision in which the material findings of fact are demonstrably false and contrary to scientific understanding. The best analogy here is the two trials of Galileo for the heretical belief that the Earth revolves around the Sun, whereas Church doctrine was to the contrary. A rule of Church or other law that this belief should be treated as heretical and its publication should be treated as legally objectionable would not now be applied in any rational legal proceeding.

Unfortunately the findings in Ariosa contain similar egregious errors alleging demonstrably untrue scientific fact of both a qualitative and a quantitive nature, those findings being not only material to the decision but utterly fundamental to it. The amplified paternal DNA is not a product of nature (despite some similarities) but is the result of laboratory synthesis involving amongst other things primers, bases, an enzyme and multiple heating and cooling steps. Amplification increases the abundance of the paternal DNA on the face of the panel opinion by a factor of 1,000 to 1,000,000 as has previously and repeatedly been pointed out. Such isolation accompanied by increase in relative abundance of an allegedly natural product has in itself been held to justify patentability ever since the decision of Judge Learned Hand in the Adrenalin case more than 100 years ago.

It is a disgrace that a decision of such scientific and legal illiteracy is labelled as precedential and treated as such in later jurisprudence.

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