How long will it take the Federal Circuit to overrule this inexplicable nonsense? The novice reader may find that question to be ignorant, since the Supreme Court is the highest court of the United States. Those well acquainted with the industry know that the Supreme Court is not the final word on patentability, and while the claims at issue in this particular case are unfortunately lost, the Federal Circuit will work to moderate (and eventually overturn) this embarrassing display by the Supreme Court. This will eventually be accomplished the same as it was after the Supreme Court definitively ruled software is not patentable in Gottschalk v. Benson, and the same as the ruling in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge Rader’s statements that nothing has changed in Federal Circuit jurisprudence as a result of KSR, which is not technically true. What is true, however, is that the Federal Circuit continues to refine the KSR “common sense test,” narrowing the applicability in case after case and tightening the ability for “common sense” to be used against an application. We are almost 5 years post KSR and there is still a lot of work left to be done by the Federal Circuit to finally overrule the Supreme Court’s KSR decision. It took almost 10 years to overrule Gottschalk v. Benson, so we are likely in for a decade of work to moderate the nonsense thrust upon the industry this morning.
Indeed, Breyer’s decision is the most intellectually dishonest decision I have ever read, which is saying a lot given the utter contemptuous understanding of patent law displayed by the Supreme Court over the years. It is truly troubling that all 9 of the Justices concurred in what history will regard as one of the worst decisions in the patent space EVER!
Yes, Congress will be asked to step in and rectify this absurd ruling, and they should. Knowing how the legislative branch operates I cringe at the thought of Congress coming to the rescue. The only thing that gives me solace is that the industries summarily executed this morning have an A+ lobbying game, which in Washington, DC means everything.
(http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-pr...)
The worst of it is: Quinn is exactly right (about the Federal Circuit, in every way an organ of the patent lobby). The Supreme Court is simply not in control of our foul, meretricious patent bar. (Of course, if they wanted to start getting in control of it, they're doing it right.)