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Chucksz
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I should also note that n=1,2,and 3 are covered in the specification for all X, Y, and Z.
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This is a really bad case for cert. There is a difference between the patentability and validity questions that is being ignored. The question of validity is tried under the presumption that the claims at issue are valid. Moreover, the patent owner has no right to amend her claims to distinguish over presented prior art. On the other hand, in patentability proceedings, whether pre or post grant, there is no presumption of validity, claim amendments are permitted in many circumstances and the claims are construed under the standard of "broadest reasonable interpretation in view of the specification. That is where the USPTO has it administrative jurisdiction but it has no jurisdiction over validity questions. So, yes, it is possible for the USPTO to declare a claim unpatentable notwithstanding a court's ruling of validity. If you ask two different questions, sometimes you will get two different answers. Bad cases make bad law.
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