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« CVC Files Appeal Brief in Interference No. 106,115 | Main | Scientists File Amicus Brief in Interference No. 106,115 »

November 06, 2022


I do have to wonder just what the percentage (across different groups of people) is that would immediately agree with the subdued slam of the US Supreme Court in the comment of, "(at least until the decision is rendered)."

A second curiosity is whether or not the members of that Court recognize that their patent view are largely held in disdain.

No matter what the Court decides some will be unhappy and for some variation of decisions it will be most

Looking in from Europe, familiar with the enablement standard under the EPC but not with that under 35 USC 112, I don't even understand the question that SCOTUS has volunteered to answer. As written , it looks to me like a classic false dichotomy. What are the reasons for framing it like that? Perhaps to pique the interest of a court that might relish the chance to critique the question? But surely not: I mean, the question in its particular form emerges inevitably, from the proceedings in this case up to now in the lower courts, right?

I take some issue with this: "the law leaves room for others to patent independently non-obvious (and not expressly disclosed) species falling within the scope of a claimed genus" as applied here. This is fine for many inventions because the species is really a new invention improving on the dominating genus (e.g. a five-legged chair, then a five-legged chair with a certain kind of bolt). I don't think typical biochem genus/species patents have this kind of invention distinctiveness. Instead it's basically the same invention (big group of molecules with cholesterol-lowering utility, then a specific one that's extra good), and thes species patent seems to impair the public's right to enjoy the genus invention once it expires.

My overall take is that pathway-level exclusivity is strongly innovation and welfare-enhancing, but should be granted as a reward for proof-of-concept (Phase II). As it stands, these patents come too early and just reward conjecture that barely adds to the art. Still, it may be worth allowing them as is if it encourages more disease theory-testing.

Dr. Noonan,

There is a lot 'buried' in that 'most' for some variation of decisions.

Variation of such may well include the variety of the Supreme Court legislating from the Bench and sticking their fingers into the wax nose of patent law for what THEY (merely) want.

In such situations, 'most' SHOULD BE 'all.' That it is not is a poor reflection on attorneys as a group, who -- by and large -- have ethical responsibilities that place (the group) as to championing the Constitution and not merely one Branch (among the three) operating UNDER the Constitution.

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