Jumping Down the Rabbit Hole: Federal Circuit Ducks the Patent-Eligibility Issue in King PharmaceuticalsPosted: Tuesday, Aug 3, 2010 @ 11:50 pm | Written by Eric Guttag | 10 comments
Posted in: Bilski, Business Methods, Federal Circuit, IP News, IPWatchdog.com Articles, Patent Fools™, Patent Litigation, Patentability
As Alice once said things are growing “curioser and curioser.” I just opined about the “fuzzy” looking glass called Bilski v. Kappos for determining what is (or remains) patent-eligible subject matter under 35 U.S.C. § 101. See Through the Fuzzy Bilski Looking Glass: The Meaning of Patent-Eligible under 35 U.S.C. § 101 . After reading King Pharmaceuticals, Inc. v. Eon Labs, Inc., I’m now ready to throw my Ouija board though that Bilski looking glass. With an opportunity to render some order out of the Bilski chaos, the Federal Circuit instead completely ducked the patent-eligibility issue clearly presented in King Pharmaceuticals. The Federal Circuit then created (and I do mean “created”) the new “an anticipated method claim doesn’t become patentable if it simply includes an informing step about an inherent property of that method” doctrine. With this new “doctrine,” we have now “jumped down the rabbit hole” into a surreal “Bilski in Patentland” world.