Tuesday, March 04, 2008

Bayer loses Yasmin case to Barr

Bloomberg reports -- Bayer AG fell to the lowest level in a year in Frankfurt trading after a U.S. judgein D NJ invalidated a patent on the Yasmin contraceptive, giving Barr Pharmaceuticals Inc. a chance to sell a cheaper copy.

AP noted Judge Peter G. Sheridan found that one patent of Bayer was invalid because of obviousness under 103. The original patent owner, Schering AG, and partner Berlex sued Barr in 2005. Bayer AG bought Schering AG in 2007.

On criticism of Judge Sheridan's obviousness analysis, see patentdocs:

Judge Sheridan disregarded this evidence, on the grounds that it was not reasonable to him that Bayer's scientists would have changed direction as abruptly as they purportedly did in their formulation work.


This is madness. It cannot be the Supreme Court's intention to unleash the generally uninformed "common sense" of the generalist judiciary to trump testimony by the individuals -- the inventors -- who actually perform the experiments and produce the inventions whose disclosure fulfills the Constitutional mandate to "promote the progress of the useful arts." But that is precisely the effect that the KSR decision, and most of the rest of the Supreme Court's obviousness jurisprudence will have (and is having) on U.S. patent law. It is not enough that the Court mistakes the proper emphasis of the correct Constitutional analysis by putting the cart of restricting monopolies before the horse of promoting disclosure of new inventions. In KSR and the rest of the Supreme Court's "totality of the circumstances," "we know an obvious invention when we see one" jurisprudence, it substitutes judicial common sense for scientific common sense. Folly, pure and simple.


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