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non-senior counsel at major corp
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Our internal saying is: "All our patents are valid, but some are more valid than others." Post-Bilski, this seems true as ever.
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In our corporate IP group, we have a saying: "All our patents our valid, but some are more valid than others." Post-Bilski this seems as true as ever. I will continue to counsel my clients that patents are economic rights, and that each patent has its own unique probability for successful enforcement.
Toggle Commented Jun 29, 2010 on Bilski v. Kappos at Patent Law Blog (Patently-O)
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This prediction does not seem to be certain, in light of the justices' comments at oral argument. At least four justices seem to favor an outcome that would provide at least some patent rights (Alito, Roberts, Scalia, and Sotomayer). Here's hoping for a fifth vote from somewhere!
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Tallies 2 - unhappy with MT test: Roberts, Stevens 1 - unhappy with Bilski position: Kennedy 2 - unhappy with both: Breyer, Sotomayer With at least 4 clearly unhappy with the MT test, it seems likely to get tossed.
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The Court missed the underlying issues. First, do we want to define what is IN or what is OUT? Machine-transformation defines what is IN. Diehr defines what is OUT. If you want patents to be narrow, define what is IN. If you want patents to be broad, define what is OUT. Second, do we want to use a test or categories? A test is rigid. Categories are flexible. Choose one. Now to my rants (in no particular order): Scalia - your lifelines could drown a man Breyer - please apply your cleverness for good Ginsburg - please move to Europe Sotomayer - "something that is reasonable" !?! Roberts - can you help a brother out? Kennedy - is that a comments or a question? Stevens - less is more Alito - more please Thomas - Thomas? Thomas? Thomas?
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I just looked at all of my materials on the new rules: notes, training materials, diagrams, charts, summaries for the clients. What a waste. A worthless patent is still fancy wallpaper. This stuff, not so much. Can anyone suggest the best way to convey our thanks to GSK? Is their GC tired of receiving flowers? After this public spectacle, how do you think examiners will be treating GSK's apps? With fear or animosity?
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