Comments on: Court: It’s Not An Invention If You Use Conventional Techniques To Make It

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Sat, 29 Aug 2009 21:53:24 +0000

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By: Reactions to In re Kubin: DNA Patents and Obviousness « The Cross-Border Biotech Blog

Thu, 16 Apr 2009 16:46:54 +0000

[...] Patent Baristas has (as usual) a good run-down of the decision, concluding with: “The only thing that’s certain is that the Patent Office will begin hammering biotech patents on obviousness starting more than ever.” [...]

By: EG

EG — Mon, 13 Apr 2009 15:58:22 +0000

Steve,

Your fear is quite justified. Witness the mess created by the Bilski decision in the POBAI opinions since. There’s absolutely no consistent logic in these POBAI opinions in applying the fundamentally flawed (in my view) “machine or transformation” test of Bilski. You can expect similar inconsistency as the PTO examining corps, as well as the POBAI, tries to apply Kubin. More chaos in our already chaotic area of the law.

By: Stephen Albainy-Jenei

Stephen Albainy-Jenei — Fri, 10 Apr 2009 15:10:42 +0000

My fear is that the Patent Office, armed with this decision, will now hand out obvious rejections left and right for every invention made using “known” techniques.

How often will an applicant be able to come back and state that they used some heretofore unknown laboratory method(s) to make the final invention?

Stephen

By: EG

EG — Fri, 10 Apr 2009 12:12:08 +0000

Kevin Noonan’s critique of Kubin on Patent Docs is very insightful. Kubin is fraught with problems, including how well did this panel understand the technology involved, and especially what the art did (and particularly didn’t) teach relative to the claimed invention, overruling existing Federal Circuit precedent (In re Dueul) in a panel decision based on a reading (or in my opinion a misreading) of one statement by the Supreme Court in KSR International, and relying on the applicant’s own application to establish a point (in violation of a fundamental principle of patent law that the applicant’s own teaching is not to be used as prior art). For these reasons alone, Kubin needs to be reviewed by the entire Federal Circuit en banc.