Tuesday, June 24, 2008

Nuijten: no matter how useful

The question presented for cert in Nuijten ends with the words: "no matter how innovative, unique or useful they are."

One notes "innovative" is not a criterion in patent law.

Novelty is a criterion, but one wonders how to evaluate "how" unique something is. It's either unique (novel) or it's not.

"Useful" (utility) is a criterion in patent law, but it's a threshold one. If it's useful, we're done, and we don't worry about "how" useful it is.

Who formulates these questions?

Lab Corp. v. Metabolite, 548 US 124 (2006) gets a work-out in the professors' amicus brief, but, gosh, the Supreme Court did not decide the case!

The brief does quote Justice Harlan in Katz for the text: "bad physics as well as bad law."

Known position wobbler Mark Lemley is on the same side of the Nuijten issue as he was in Lab Corp. Trouble was the "pro-patentee" side of Lab Corp. was VERY troubling, a fact the amicus profs in Nuijten overlook.


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