Thursday, June 12, 2008

BIO brief in Kubin appeal

Of Kubin (now before the CAFC), Patently-O noted: On June 10, the Biotechnology Industry Organization filed an amicus brief asking the court to cabin in the scope of KSR and hold that its obvious to try dicta does not abrogate the Deuel standard.

See also:

Eleven easy pieces for obviousness under 103?
which includes

The Kubin decision had text about the CAFC decision In re Deuel:

Appellants heavily rely on Deuel. (See, e.g., Br. 19.) To the extent
Deuel is considered relevant to this case, we note the Supreme Court
recently cast doubt on the viability of Deuel to the extent the Federal Circuit
rejected an “obvious to try” test. See KSR Int’l Co. v. Teleflex Inc., 127
S.Ct. 1727, ___, 82 USPQ2d 1385, 1394, 1396 (2007) (citing Deuel, 51 F.3d
at 1559). Under KSR, it’s now apparent “obvious to try” may be an
appropriate test in more situations than we previously contemplated.

See also:

In passing, note that the ALJ who wrote Kubin falls into the Duffy category
of "unconstitutionally appointed" judges. If the Duffy theory got any traction
(IPBiz thinks this is unlikely), then Kubin will go bye-bye all by itself.


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