Well almost. The first posts on Patents4Life were dated March 24, 2009. One was on a fairly obscure decision, SRI International (the prior art effect of internet postings), but the other two were on the Fed. Cir.’s summary affirmance of the district court’s finding of invalidity in Classen (applying Bilski as they saw it) and on the Board’s decision ex parte Kubin (that went on to invalidate a DNA patent as obvious to try in the wake of KSR). These decisions were just the first ripples of the tidal wave of judicial decisions at all levels that have limited the scope of patent protection. While the Supreme Court in Festo facially rejected the absolute bar to the application of the doctrine of equivalents endorsed by the Fed. Cir., no one would have picked it as the high water mark of pro-patent case law in our time. The presumptive surrender of access to the DOE has proven daunting to the use of the DOE in practice. But compared to most of the later decisions on central issues of patent law, Festo looks like a beacon of hope. If you have been reading this blog (or any number of others) over the last two years, the number of “anti-patent” decisions that have been handed down is simply overwhelming.
Now some of them are not yet carved in judicial stone, being at various stages of appeal, but the sum of KSR, Bilski (well, I guess it was more pro-patent than the strict M or T test it replaced with a test yet-to-be-determined), Ariad v. Lilly (WDR grows up), Lilly v. Sun,(broadened base for obviousness-type double patenting), Centocor v. Abbott (WDR rules), Microsoft v. i4i (lower evidentiary bar to patent invalidation), Janssen v. Teva (no utility for hypothetical bioactivity), Stanford v. Roche (weakens Bayh-Dole Act), Myriad (DNA and diagnostics are natural phenomena), Therasense v Becton Dickinson (more ways than ever to show inequitable conduct), and the WARF stem cell reexamination (WARF lost at the Board) do not bode well for the system Jefferson hoped would help modernize the young republic. The only bright spot on this judicial trial of tears was the Fed. Cir.’s affirmance in Prometheus v. Mayo in December that methods of medical treatment and monitoring past muster under Bilski. And yet, even this modest decision may be reconsidered by the Supreme Court.
Still, the last time the full court addressed the issue of patentable subject matter was in 2001 in Pioneer v. JEM Ag Supply, in which the patent eligibility of plants was affirmed, and the Court refused to back down from Chakrabarty. The issuance of the Chakrabarty patent was 30 years ago this month and most would agree that granting biotech patents has done our society a lot more good than it has rained evil upon us. Except, perhaps for the folks who are trying to block Obama’s order permitting funding for stem cell research. Or the Myriad plaintiffs. But they are in the minority. Aren’t they?