USPTO David Kappos recently posted a comment on the Fed. Cir. decision in Ariad v. Lilly in which he noted that the Fed. Cir. held that broad functional claims (presumably mechanism-of-action claims) must be supported by sufficient species (read “working examples”). While Director Kappos clearly approves of this holding, he does no more to provide guidance to Examiners attempting to decide how many examples will support such claims and, more importantly, are there generic claims for which no number of working examples would provide sufficient support (like the Ariad claims at issue)?
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