Notably, while attending a BIO meeting, Judge Rader reportedly responded to a comment by Professor Whealan (and former Rader clerk) that there are no real “legal standards for making [a Section 101] decision. . . [U]sing Section 101 to say that the subject matter is unpatentable is so blunt a tool that there is no neutral step to [draw] a line here [between what is and is not patentable].” In Judge Rader’s construct, the lack of a clear legal standard means that the decision will then be based on “politics. It’s what you believe in your soul, but it isn’t the law.” In another conference (this time at Fordham Law School), AMP’s attorney Dan Ravicher was speaking and Chief Judge Rader asked Ravicher a question “hinting at disagreement” with Ravicher’s position. In particular, the Ravicher-Rader colloquy was quoted as follows:
Ravicher (pointing to a bottle of water): "Was that [purification] sufficient intervention between what God gave us ... and what man created to merit a patent?"
Chief Judge Rader: "How many people have died of water pollution over the course of human events? Probably billions."
The commenter "6" posted at Patently O ["PO"}:
Now that this issue has progressed from the backwater Patentdocs and emerged on PO can someone be so kind as to tell me why more lawlyers are not in the least bit concerned about a judge who believes that the law is not applicable to a particular decision before him and that he will have to rule based on his political beliefs? Do we expect judges to apply the law or judge on their political beliefs?