LBE, in weighing in on the proposed revisions to the Honor Code at the University of Virginia in the wake of the Routman affair, took a similar tact to that of the concurring judge. Changing the definition of plagiarism at UVa [much like the majority of six in Therasense replaced Rule 56 with a "but for" standard] does not solve the problem of plagiarism, but does make it harder to prove. As the dust settles in the patent world, one will find certain types of bad acts, once discouraged by an enforceable Rule 56 standard, will become accepted behavior, but there will be less litigation in that area.
Of course, as recognized by the concurring judge, this change was driven by policy, not by law. Interstitial rule-making. If, hypothetically, this case is reviewed by the Supreme Court, we will get to see how the "but for" standard fares.
A previous IPBiz on the UVa Honor Code:
University of Virginia to change definition of plagiarism?
A previous IPBiz post on Therasense: http://ipbiz.blogspot.com/2011/05/therasense-v-becton-dickinson-death-of.html
Solicitor Chen's oral argument