With great respect, the argument that Section 101 does not provide a defense to a claim of patent infringement is so frivolous that Rule 11 sanctions could properly awarded for anyone who makes it. Further, it is misleading to frame the issue in relation to solely to invalidity--rather, the defense renders a patent unenforceable and it also is arguably jurisdictional. The best word to describe this argument---silly.

From a trial lawyer's perspective, this is purely an evidentiary matter. Determination of a POSITA is a question of fact. Evidence that scientists in a given field ordinarily work in teams may be relevant to determining the POSITA, but a POSITA is not a "team" of scientists---that would be legally incorrect. As KSR settles into our jurisprudence, there will be more hotly contested battles on the issue of how to define the POSITA in given cases and, ultimately I expect that members of the patent bar will find that the POSITA has routinely been incorrectly defined as someone with just a couple of years of industry experience after obtaining a Ph.D. (and/or a junior member of a "team"). When the issue is contested by submission of evidence, chances are that a POSITA will be a very senior scientist or laboratory head--the scientific equivalent to senior partner in a law firm. Thus, while evidence that scientists work in teams may be admissible, it hardly will be dispositive.

While the Federal Circuit has the right to control its docket by implementing procedural rules such as this, I wonder whether this rather inflexible rule is wise. Wouldn't it be better for the Federal Circuit to encourage the parties to brief all issues decided below so as to assure that they can be adudicated in a single appeal if necessary? Further, this strict limitation on the scope of cross-appeals is arguably inconsistent with the Federal Rules of Appellate Procedure (which allows cross-appeals), and it is certainly inconsistent with customary appellate practice in which cross-appeals are appropriate in any situation where otherwise there might be concerns about waiving rights to appeal from determinations of the trial court. While this rule may reduce the number of briefs that Federal Circuit panels must study, does it really serve the interests of efficiency and fairness?

I applaud Jason's proposed objective approach. The problem with a subjective intent requirement is that in most cases involving alleged inducment, we are dealing with "corporate" intent rather than intent of individuals. The difficult issue is to ascertain what kind of evidence in the corporate setting is sufficient to justify a finding of corporate intent to induce. The objective approach is the most logical answer to this problem. If adopted by the Supreme Court (and I think there is a significant likelihood that this will happen), an objective (or "deliberate indifference") approach will likely render useless a large percentage of the opinions rendered by outside law firms on issues of inducement. This will have major consequences in many industries, including the pharmaceutical industry. For example, among generic manufacturers of pharmaceuticals, an objective standard will make it very difficult for generic manufacturers to avoid liability for inducement by engaging in such tactis as "skinny labeling". Notwithstandin the labeling, they will know that some significant percentage of the sales will result in infringing uses. Under an objective standard, that should be sufficient to establish liability for inducement. I submit that those who would require smoking gun evidence of specific intent (mens rea) to infringe are simply trying to pretend as if 271(b) was not part of the patent law.