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« Federal Circuit Finds Calculating Machine Ineligible | Main | Sequence Comparisons Illustrate Susceptibility to Coronavirus Infection »

August 24, 2020


Looking in from outside, I'm trying to five the judges of the Federal Circuit credit where any credit is due. I wonder whether they are exasperated with the efforts of the Supreme Court thus far, and see Axle as a rare chance to tee up to the Supreme Court a case on eligibility in which the subject matter is simple enough for even the Justices of the Supreme Court to grasp.

And by now, with the length and depth of the furore over Axle, the Supreme Court might itself feel confident enough in its abilities to take the case and thereby re-set the compass on eligibility.

In short, is the 6:6 engineered by those 12 judges to get the case up to the Supreme Court.

The courts have already destroyed vast areas of innovation. Too little, too late.

Max: you old optimist, you! I think a thorough rehashing of the whole sorry state of affairs in the opinions that would have been rendered on rehearing en banc might have been a better way to get the Supreme Court's attention. The Court has had many (almost 50) cert petitions on the issue since Alice and has denied in every case, including Athena where the original grumblings in Sequenom were raised to a shout. It is clear that at least 6 members of the Federal Circuit think they are mandated by the Court to find ineligibility wherever they can, and have lost their compass in using the other, more specific potions of the statute to strike down inter alia overbroad claims. It is sad that the Court has reached this point; Judges Markey, Nies, and particularly Judge Rich must be rolling in their graves. I occasionally read In re Bergy to be reminded of how the Federal Circuit should have responded to Mayo and Myriad; a first year law student is taught how to distinguish cases, I wonder why this court cannot

"I wonder whether they... see Axle as a rare chance to tee up to the Supreme Court a case on eligibility in which the subject matter is simple enough for even the Justices of the Supreme Court to grasp."

I doubt it. There has been no better illustration of the perversity of current subject matter eligibility jurisprudence than Ariosa v. Sequenom. If the Court was not willing to take cert. on that travesty, I am dubious that they are going to be moved by the outcome here.

"I occasionally read In re Bergy to be reminded of how the Federal Circuit should have responded to Mayo and Myriad..."

Exactly. Indeed, this is sort of the attitude that the CAFC is taking in the Vanda line of cases---distinguish pure "method of diagnosis" claims from "method of treatment" claims in which the only difference between the claimed treatment and the prior art treatment is the interposition of a diagnostic method step. In other words, distinguish Mayo into formalistic irrelevancy around which the skilled practitioner can easily draft.

Regrettably, that is not how the court is approaching pretty much any other sort of inane subject matter eligibility challenge that has arisen in the last six years.

Kevin, Greg, I defer to your assessments. Nevertheless, I cling to my gut feeling that vibrating prop shafts and resonant frequencies are easier for a lay person to relate to than chemical cases, if only because they have all experienced vibrations in their everyday lives.

When will there ever be a more suitable case than Axle, to tempt SCOTUS into having another look at the ever more bloated absurdity of the consequences of its eligibility jurisprudence?

Once one has become an expert in any particular field it is almost impossible to imagine how difficult it is for a lay person to read themselves into that field. Do not under-estimate i) the disinclination of the Justices to "do a Mark Twain" (ie open their mouth and reveal how little they understand) by once again wandering into the minefield of the chem-bio arts, and ii) the appreciation that they nevertheless have a duty somehow to clear up the mess they have made of eligibility.

OK. I'm an incorrigible optimist. But there are worse things to be, eh?

Thanks for the excellent explication Kevin.

While Congress dilly-dallies, American innovation burns.

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