Patent Law

Vaccination

By Gary Odom and Jordan Kuhn

Bilski has no basis in statute, and by any reasonable metric of jurisprudence, is downright bad case law. That's right, Chief Judge Michel, I am addressing you, sir. You are just making stuff up willy-nilly. But it doesn't help that prosecutors draft jackass claims, which examiners let pass, and then, rather than sicing the big-footed Obzilla on them for a good stomping, it's just too easy to rule: "damn, son, you can't patent that." We are talking a chronic disorder here.

Classen Immunotherapies v. Biogen and GlaxoSmithKline and Merck and Chiron and Kaiser-Permanente (CAFC 2006-1634, -1649)

5,723,283:

1. A method of determining whether an immunization schedule affects the incidence or severity of a chronic immune-mediated disorder in a treatment group of mammals, relative to a control group of mammals, which comprises immunizing mammals in the treatment group of mammals with one or more doses of one or more immunogens, according to said immunization schedule, and comparing the incidence, prevalence, frequency or severity of said chronic immune-mediated disorder or the level of a marker of such a disorder, in the treatment group, with that in the control group.

Compare a control group to an immunized group. The boys back at the lab are just awed at how novel that is.

In one easy paragraph, a CAFC panel agreed with a district court judge that comparing things does not qualify as a requisite transformation.

In light of our decision in In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), we affirm the district court's grant of summary judgment that these claims are invalid under 35 U.S.C. § 101. Dr. Classen's claims are neither "tied to a particular machine or apparatus" nor do they "transform[] a particular article into a different state or thing." Bilski, 545 F.3d at 954. Therefore we affirm.

You inventors want claims that'll stick to the ribs of infringers, and not bounce off because of some dime-store case law? You just need to dial Platinum Patents.

Full post as published by The Patent Prospector on December 19, 2008 (boomark / email).