Wednesday, May 2, 2012

The Stinko's of Mayo v. Prometheus

You Stink

This week the number 5 weighs heavy
in US patent law.

May 5th (Cinco de Mayo) will mark roughly 5 years and 5 days since the infamous KSR v. Teleflex decision.

The (AIA) 'Seeds of Chucky' revealed their true colors this week ...

It was a fab five who rendered the bombastic Bilski decision (though it could have been much worse had the more anti-inventor other 4 had their way).

And then we have the newest creme de la creme of patent logic signed by all 9 of the anti-inventor Amigos: Mayo v. Prometheus (MVP) ....

Fly on the Wall

Oh to have been that proverbial fly on the wall and listened in as the 9 Amigos deliberated over the fate of pharama in the MvP star chamber.
Perhaps it went like this (a fictional dramatization)

Chief Justice Roberts: Sonia, you used to be married to a patent attorney, right? What the heck is a patent any way?

Associate Justice Sotomayor: Sorry, John. That ex-husband of mine used to bore me to tears when he droned on and on about his patent stuff. This wise Latina learned to shut her eyes and feign sleep. All I remember is that a patent claim is supposed to recite to an audience what the invention is.

Associate Justice Scalia: I think I can help on that score because this history buff and medium does pay attention. Each night before I go to sleep, I talk things over with our Founding Fathers. I mentioned to them this business about not letting physicians bleed their patients as they wish.

Need I say that the FF's (Founding Fathers) were almost rolling out of their resting places? Why it is imperative and part of the Natural Laws that a doctor has every right to excise the harmful humors from an ill body. I say we put a stop to this outrage!

Associate Justice Kennedy: Whoa. Hold up there my brother Anton. I too am a medium or moderate of sorts. While I don't nightly consult with our FF's, I fear we may be going to far and too fast. Perhaps at the end of the day we need to outlaw the use of patents for anything and everything having to do with medicine. But at least for now, can't we come up with a more measured approach? I liked what you said about the "Natural Laws". And I liked what Sonia said about a patent claim reciting to an audience. Can we somehow combine those ideas and come up with a compromise?

Associate Justice Thomas: [nods head in agreement]

Associate Justice Breyer: While I am a bleeding heart liberal, I must in this case agree with my artery bleeding brother Scalia. We cannot let this patent law stuff interfere with a doctor's right to treat his patients as he wills, be it with 18th century medicine or something slightly more modern. I think I see a way to combine this idea of "Natural Laws" and of what a "patent claim" recites to its audience so as to reign in inventors who claim too broad of a taking from the public's right to Obama care. Why don't you guys let me chisel out the first draft? If you like it, sign it and put the final blame on me. OK?

Associate Justice Alito: My comic sense tells me I should leave my comedian's routine out of this.

Associate Justice Breyer: I'll include that notion in there as well.

Outcome: And so it came to pass that the Supreme Court wisely ruled that a patent claim is something that recites to an audience of doctors what the invention is and when it recites only "Natural Laws" and "routine" other things then it fails to genuinely recite that extra something significantly "more" which raises it to the level of deserving and being "eligible" for a patent.

Public acclaim: Moreover, the enlightened public was full of praise for the clear guidance that the 9 Amigos had once again cast over the confusing land of patenthood. (Click on image to the left)

to be continued ...

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