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December 23, 2021


One "flavor" that is not commented upon: given that it was NOT the patent holder that provided the impetus to "go and find out," the actual inventor (as opposed to a mere laborer's hand) would be the government and not the putative patentee.

Of course, this may turn on whether or not the actual steps engaged were themselves inventive.

I think this is in the category of inventions where a party says "I wonder about X" (having nothing other than that) and the inventors then look into X and find something inventive. On the information in the opinion there is nothing to suggest that FDA did anything other than make a suggestion/demand for the comparison.

Thanks for the comments. Happy holidays

I cannot agree that a dictate from a governing body amounts to a "I wonder." There are worlds of difference between wonder to suggestion to demand.

As I noted, the only way out (for the patentee) is that the patentee actually had to do something inventive that amounts to more than a mere laborer's hand.

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