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Category: Patentable Subject Matter
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By Grantland Drutchas — Perhaps one of the most intriguing issues coming out of the Supreme Court's Myriad decision is whether it leaves any room for the "inventive concept" test raised by earlier Supreme Court decisions, including Mayo v. Prometheus. Or is inventive concept merely limited to method claims? Compare the mental gymnastics that the…
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By Kevin E. Noonan — The Supreme Court rendered its opinion in Association for Molecular Pathology v. Myriad Genetics, Inc. ("the Myriad case"), and in many ways it was anticlimactic: the Court adopted the Department of Justice's position (thankfully, sans "magic microscope") by deciding that cDNA was patent eligible but genomic DNA (and fragments thereof…
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By Donald Zuhn — On the same day that the Supreme Court handed down its decision in Association for Molecular Pathology v. Myriad Genetics, Inc., the U.S. Patent and Trademark Office issued a one-page memorandum to its Patent Examining Corps to provide preliminary guidance on the decision. The memo from Andrew Hirshfeld, the Deputy Commissioner for…
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Association for Molecular Pathology v. Myriad Genetics, Inc. (2013) By Donald Zuhn — In a much anticipated decision, the Supreme Court issued its opinion this morning in Association for Molecular Pathology v. Myriad Genetics, Inc. In an opinion by Justice Thomas, joined by Chief Justice Roberts, Justices Kennedy, Ginsburg, Breyer, Alito, Sotomayor, and Kagan, and…
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By Kevin E. Noonan — "The name of the game is the claim." — Judge Giles Sutherland Rich Much has and will continue to be written about the Federal Circuit's en banc decision in CLS Bank Int'l v. Alice Corp. last week, and most of the commentary has and will be critical of the path…
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By Michael Borella — A previous post presented the background of this case, as well as Judge Lourie's plurality concurrence, and a second post addressed Chief Judge Rader's concurrence-in-part and dissent-in-part. As noted in those posts, Alice's claimed inventions involved the reduction of settlement risk using a third-party intermediary. This post continues the story of…
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By Michael Borella — A previous post presented the background of this case, as well as Judge Lourie's plurality concurrence. As noted in that post, Alice's claimed inventions involved the reduction of settlement risk using a third-party intermediary. Despite the claims being of various statutory classes, including process, article of manufacture, and machine, Judge Lourie…
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By Michael Borella — On May 10, the Federal Circuit handed down a much anticipated en banc ruling regarding the patent eligibility of computer-implemented inventions under 35 U.S.C. § 101. In a per curiam opinion that is perhaps the most important § 101 jurisprudence since the Supreme Court's Bilski v. Kappos and Mayo v. Prometheus…
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By Kevin E. Noonan — The biggest concern of the biotechnology industry caused by the impending Supreme Court decision in the AMP v. Myriad Genetics case is the threat to existing patents having claims to isolated human DNA (and the DNA from other species) that a negative decision from the Court could raise. Patent protection…
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By Kevin E. Noonan — The U.S. Supreme Court heard oral argument in Association for Molecular Pathology v. Myriad Genetics, Inc. on Monday, and many have commented on the Court's interrogation of the parties' representatives (and the government) and how those representatives responded to the Justices' questioning. On balance, it seems fruitless to bemoan the…
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