I’m with Shilling on this one again. All the discussion about diagnostic methods is unnecessary if one adopts MY version of the utility test. So much easier, so much better.

Even the CEO of Fedex has now said that UNCERTAINTY is his #1 business concern. The uncertainty surrounding US patents is totally unacceptable, and worse, unnecessary.

As far as this decision goes, Lourie judges the composition claims patent-eligible based on a structural difference that is exclusively attributable to human intervention, and as a unique entity based upon a utility not exhibited by the naturally-occurring form.

Lourie’s was a policy-driven decision, as was Moore’s.

One of my favorite lines of Lourie’s was on page 46 where he refers to “carbon molecules”. Remember, THIS is the guy deciding a DNA patent case.

He should have stopped while he was ahead, because he contradicts his own reasoning: “…the diamond is the same lattice of carbon molecules, just with the earth removed…”

It can just as easily be said that “the BRCA gene is the same lattice of nucleotide molecules, just with the remainder of the DNA molecule removed”, or something chemically correct to the same effect.

He contradicts his own reasoning again when he states that breaking the leaf off a tree is not the same thing. It’s just breaking bonds, isn’t it? Is it not “cleaved from its combination with other parts of the tree”? Is it not “chemically different” than an intact, complete tree?

And he does it a third time, in his statements on page 47 regarding the physiologic use or benefit of diagnostic tools and medicines, which directly contradicts his statement on page 44 that physiological use or benefit NOT be used to determine patent eligibility.

Finally, on page 52, he tries to distinguish Myriad’s method claims from those upheld in Prometheus. This is bvllcrap, they are exactly the same. The only difference is that Prometheus was wrongly decided.

Nice job, Lourie. Nice policy-making.

Same goes for Moore. Her policy-based decision wasn’t even veiled at all, she put it right out there.

I particularly chafed when I read her bit about the “legitimate expectations of inventors”.

Essentially, this is her logic: we screwed up in deciding that genes were patentable, but everybody has relied in good faith on that screw-up, so we’re going to stick with it going forward.

What a cr*p decision, they just wrote all sorts of junk, knowing full-well that it would be appealed, or that it would be re-heard en banc.

My own view is that the composition claims do contain patent-eligible S-M, but that the method claims do not contain patent-eligible S-M as written.