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CAFC on Patent-Eligibility: A Firestorm of Opinions in Classen*

Posted: Thursday, Sep 1, 2011 @ 1:25 pm | Written by Eric Guttag | 15 comments
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Posted in: Business Methods, Companies We Follow, Computers, Federal Circuit, IP News, Articles, Microsoft, Patent Litigation, Patentability, Patents, Software, US Supreme Court, USPTO

Just as all of us have slowly started to absorb the implications of the remand in Prometheus Laboratories, Inc. v. Mayo Collaborative Services, as well as the triumvirate of opinions in Association for Molecular Pathology (AMP) v. USPTO, on the standard for patent-eligibility under 35 U.S.C. §101, the Federal Circuit (finally) issued its long awaited (by some of us) remand decision in Classen Immunotherapies, Inc. v. Biogen IDEC. That there was a majority (and a dissenting) opinion in the remand of Classen wasn’t surprising. But that there was yet a third “additional views” opinion would likely not have been predicted by anyone. And it is that “additional views” opinion, along with the majority and dissenting opinions, that will certainly generate a “firestorm” through the Federal Circuit, and which may eventually reach the Supreme Court. The judicial donnybrook on the question of what the standard is (or should be) for patent-eligibility under 35 U.S.C. §101 is about to begin in earnest.

As my fellow patent attorney, Kevin Noonan, poignantly says on Patent Docs, the Classen remand decision “[couldn’t] be more different from the Federal Circuit’s earlier decision.” That earlier decision (with Judges Moore and Newman on the panel), which came out not long after the Federal Circuit’s famous (and some would say “infamous”) en banc Bilski decision, is astounding for its brevity (one paragraph of 69 words), or as Kevin also poignantly observed, the claimed method was longer than the opinion by 20 words. As I also commented when that earlier opinion came out, it was ghastly for completely failing to explain how the “new” Bilski “machine or transformation” test was applied to the claimed method. See CAFC: Method for Calibrating Drug Dosage is Transformative.

The Fundamental Unfairness of Retroactively Applying Bilski

Posted: Wednesday, Jan 6, 2010 @ 4:56 pm | Written by Gene Quinn | 112 comments
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Posted in: Anti-patent Nonsense, Bilski, Computers, Gene Quinn, IP News, Articles, Patents

An article I published yesterday – Praying the Supremes Get Bilski Right in 2010 – has already started quite a stir, bringing out the anti-software patent advocates.  These folks always claim to be innovators and as innovators they know best and they state with an obviously flawed confidence that as innovators they can state with certainty that innovators despise software patents.  Of course, this is utter and complete nonsense.  Those who are anti-software patent are simply pro copying.  They don’t want software patents because then they cannot copy the work of others freely and without fear of being sued.  Those in the software industry who are not interested in software patents are not innovators, they are copiers.  They steal the work of others.  They also claim to have a sophisticated understanding of constitutional law and patent law, but reading what they say makes it apparent to anyone who is knowledgeable that they don’t know the first thing about law in general, let alone constitutional law or patent law in particular.  It serves no purpose to retroactively kill patents and applications that could have satisfied the standard announced in In re Bilski, but were written to satisfy the now defunct State Street test.  That is changing the rules in mid-stream and violates all ideals of fundamental fairness and due process.