Judge Giles Sutherland Rich famously said that, in patent law, "the name of the game is the claim." One of the weaknesses in the "gene patenting" debate, as well as in the District Court's opinion in AMP v. USPTO (the Myriad case), is the lack of clarity about the scope and meaning of the claims of the challenged patents. The District Court did not bother to hold a Markman hearing to construe the claims, and thus neither that Court nor the Federal Circuit in reviewing Judge Sweet's decision brought any clarity to what the parties were arguing about, instead drawing generally inapt analogies to what other claims in other patents might claim. The type and number of claims at issue are sufficiently similar, having generally the same structure and using the same language that claim construction might help, and the language used is certainly no more arcane than in any other patent case.
Wednesday, August 24, 2011
Patent Docs: Is Claim Construction the Key to #Patent-eligibility of Isolated #DNA?: