Gene Patents on Appeal: ACLU’s Recusal Motion

Association for Molecular Pathology (AMP) and the American Civil Liberties Union (ACLU) v. United States Patent and Trademark Office (USPTO) and Myriad Genetics (Myriad) (Fed. Cir. 2010)

In a May 2010 decision, Judge Sweet of the Southern District of New York issued an opinion that would render most gene patents invalid for failing to claim patentable subject matter under 35 U.S.C. 101.  That high-profile case is now on an appeal, and has the potential of shifting US patent law both by its in-court and out-of-court impact.

Even before filing a substantive brief on the merits, the declaratory judgment plaintiffs (AMP & ACLU) filed a motion asking that Chief Judge Rader recuse himself from potentially hearing the decision. AMP argues that the Chief’s public statements regarding this case “have created an appearance of partiality that calls into question his ability to engage in impartial legal analysis.”

Notably, while attending a BIO meeting, Judge Rader reportedly responded to a comment by Professor Whealan (and former Rader clerk) that there are no real “legal standards for making [a Section 101] decision. . . [U]sing Section 101 to say that the subject matter is unpatentable is so blunt a tool that there is no neutral step to [draw] a line here [between what is and is not patentable].”  In Judge Rader’s construct, the lack of a clear legal standard means that the decision will then be based on “politics. It’s what you believe in your soul, but it isn’t the law.”  In another conference (this time at Fordham Law School), AMP’s attorney Dan Ravicher was speaking and Chief Judge Rader asked Ravicher a question “hinting at disagreement” with Ravicher’s position.  In particular, the Ravicher-Rader colloquy was quoted as follows:

Ravicher (pointing to a bottle of water): "Was that [purification] sufficient intervention between what God gave us … and what man created to merit a patent?"

Chief Judge Rader: "How many people have died of water pollution over the course of human events? Probably billions."

Two responses to the ACLU motion have been filed. 

First, Myriad responded that the cited statements by Chief Judge Rader “do not even suggest how Chief Judge Rader might vote, were he a member of the panel assigned to decide this case.”

The second filing is by the Federal Circuit Bar Association (FCBA) as amicus. The FCBA argues strongly that Judges should be encouraged to participate in educational conferences such as the BIO meeting and Fordham Law School.  The FCBA makes the important point that “Just as it is important that judges recuse themselves when the rules require it, it is equally important that judges refuse to recuse themselves where the rules do not require it.”  Granting recusal on the thin-evidence presented here would have the two primary effects of (1) discouraging sitting Federal Circuit judges from participating in public conversations and (2) encourage more strategic recusal motions.  The FCBA motion was a joint effort by former Deputy Solicitor General Thomas Hungar (Gibson Dunn) and the oft-paired team of Ed Reines & Amber Rovner (Weil Gotshal).

This particular motion may never be decided. Since the panel has not yet been assigned for this appeal, the CAFC has refrained from deciding the motion. In a letter to AMP, the court indicated that “[i]n the event that Judge Rader is assigned, the motion will be transmitted to him.” 

Documents:

51 thoughts on “Gene Patents on Appeal: ACLU’s Recusal Motion

  1. “Now consider whether Rader’s comments concerning section 101 even begin to approach the volumes of material that this Chief Justice has written concerning concepts that are routinely brought before him.”

    I don’t care if judge rader goes on for a decade on his OPINIONS ON THE LAW. I take issue with him saying that the law isn’t applicable to this situation (which he will be called upon, perhaps) to issue an opinion on, thus leaving him in the position of deciding based purely on his political beliefs or “feelings”.

    But thanks for the explanation about Easterbrook.

    Does Easterbrook go around espressing the opinion that the law isn’t applicable to cases before him leaving him in such a pickle as to have to decide them based on his political beliefs or feelings? I doubt it.

  2. As I mentioned, what is usually or almost always claimed in “gene patents” are NOT genes. A patented gene would rarely have any commercial use, because of the presence of introns, regulatory regions, and “junk DNA.” Furthermore, what is required for patenting a nucleic acid, including patenting a gene, is discovering a utility or inventing a new utility. Patent examiners absolutely require the inventor to set forth some utility. Therefore, in a claimed method for using an existing nucleic acid sequence for testing for risk for diabetes, or for testing for ability to respond favorably to a given drug (to give 2 examples), the utility is totally a creation of man. This kind of utility is not in any way a product of nature.

  3. Unlike software and business methods, isolated gene patents (sequences recreated in a lab from existing sequences) appear to be per se 101 violations. The originals are found in nature. They are not new compositions of matter.

  4. This is about the concept of “gene patents.” Patents that claim genes are rare. Why would anyone want a patent that claims a gene? Genes include introns, regulatory sequences, and “junk DNA,” that is, DNA that merely serves as a spacer between some of the regulatory sequences and the coding region. When opponents complain about the patenting of genes, their complaints are garbled and wrong. Most of the patents that they are complaining about do not in any way claim any gene. Furthermore, here is another general comment, regarding patents relating to personalized medicine. In cases from the Federal Circuit, as well as commentary on these cases, what is mentioned is patents to a method, where the method involves “making a correlation.” But this is incorrect. It is not correct to characterize the claims to involve the making of any correlation. In patents to personalized medicine, there was indeed a correlation, but this correlation had been established back in the laboratory, by many months or even years (at great financial expense, and with some inventive effort). What is claimed is not a correlation, but a method for taking advantage of (a method for utilizing) a correlation that had already been established by laboratory researchers. To repeat, what is claimed in methods claims (in patents to personalized medicine) DOES NOT INVOLVE making any correlation. My comments apply, for example, to patents relating to homocysteine and cardiovascular disease.

  5. That’s true, but maybe you could give me a basic rundown of why you feel it lacks merit.

    Leading contender for the bonehead statement of the day (it’s still early, though).

    6, the various posters here have already provided what you asked – you just be too ignorant to notice and too s t u p i d to even try to notice.

  6. Why is it that Supreme Court justices are so chary about expressing opinion on issues they will be called on to decide?

    My take, if Radar doesn’t recuse himself, the Supreme Court should.

  7. “To recuse a judge for being honest enough to say that is the current 101 situation in a CLE program is absurd. ”

    I don’t want to have him recused, I’d like for him to recuse himself if he should be chosen.

    “I guess you never went to law school. I imagine that if you had, you’d understand why your position on why Rader should recuse himself lacks merit.”

    That’s true, but maybe you could give me a basic rundown of why you feel it lacks merit.

  8. Good lord don’t some of you people have any real work to do?

    Or are you retirees sitting around talking about the lives you used to have?

  9. Catfight!

    Got me a big ‘ol bowl of popcorn and ima gonna reread the slapfest between Malcolm and 6. And Iza find it absolutely hilarious that 6 pinned Malcolm on the same arguments that Malcolm trots out for those art areas he dont like.

    Holy Crrp, Batman – this be in our own backyard! Sound the rallying cry, dems patents are important, this time

    So many choice tidbits – I’ll just sample this one: “All of these rejections are made routinely against various claims relating to nucleic acid sequences, as they should be.” – Yeah, Malcolm we still remember how awful the representation in that art group are (cepts you of course as you routinely get 95% of your apps through).

  10. There is not a clear legal 101 test [because that is the mess the Supremes left that law in with their Bilski “abstraction” decision, which provided no guidance whatsoever.] I hope the entire Federal Circuit will explain that in a decision. To recuse a judge for being honest enough to say that is the current 101 situation in a CLE program is absurd.

  11. I imagine that Easterbrook is some famous judge that is well known in lawlyer circles for having done some nonsense. Sorry, I’m not privy to your inside joke.

    I guess you never went to law school. I imagine that if you had, you’d understand why your position on why Rader should recuse himself lacks merit.

  12. as it stands, the law, or rather caselawlolol, very likely prohibits these sorts of claims

    You’re not making sense. The case law does not prohibit these types of claims and that is why Easterbrook will be smacked down so hard he won’t need to open the stall door to take a dump.

    Dyk can dissent until he’s blue in the face but I’m guessing he’ll be set straight before the opinion is published.

  13. “They take it quite seriously and have established an elaborate filing system just for the purpose of examining this sort of subject matter.”

    That’s all well and good but they missed the king daddy of them that might end up killing them all under 101. According to Kev this thing is invalid under 102, and I wouldn’t expect Kev to lie about such a thing, so the PTO must have missed it.

    “Also, the argument that Bilksi’s invention was an abstraction is relatively straightforward”

    I agree, but that didn’t save Benson. Nor did it save Flook. I could see it not saving Myriad.

    Now, to be honest MM, I give you guys exceptionally good chances of winning, purely on the policy grounds that you and I both know are lurking. The people in power will find a way to rule whichever way they please. He ck, some of them might even rule based on their political beliefs.

    But as it stands, the law, or rather caselawlolol, very likely prohibits these sorts of claims.

    “But they simply do not cover the “natural” gene anymore than a claim to an isolated chemical covers the same previously unknown chemical present in picogram quantities (total) per ton of the dead coral from which it was first isolated.”

    Interesting you would bring up that later situation, but lets not get ahead of ourselves, lets just invalidate one thing at a time.

    Regarding the former statement, how about we talk about parts of genes rather than genes themselves?

    In any event I’m still finishing up some work so gtg.

  14. Just as it was a clear attempt to patent an abstract idea, these are just as clear of attempts to patent things occuring in nature regardless of what the claim literally appears to cover. And there is simply no getting around that fact.

    Yes, except that the policy issues which lurk (or not) behind the Bilski decision are completely different than those which are driving the ACLU.

    I can tell you from personal experience, the PTO rejects *reams* of very narrow claims to DNA sequences all the time. They take it quite seriously and have established an elaborate filing system just for the purpose of examining this sort of subject matter.

    Completely different from Bilski.

    Also, the argument that Bilksi’s invention was an abstraction is relatively straightforward. The argument that a narrowly and structurally claimed isolated polymer with a new and demonstrated activity and utility is an abstraction or a “law of nature” is, on its face, ridiculous.

    The argument for patenting things found in nature is very compelling when, in fact, the claim covers things found in nature. It’s called anticipation, or even obviousness. Likewise, the argument that a claim encompasses unpatentable subject matter or is not enabled or fails to meet the written description requirement can be made when the claim is overly broad. All of these rejections are made routinely against various claims relating to nucleic acid sequences, as they should be. Some of them should surely have been made against the claims in Myriad’s patents.

    But they simply do not cover the “natural” gene anymore than a claim to an isolated chemical covers the same previously unknown chemical present in picogram quantities (total) per ton of the dead coral from which it was first isolated.

  15. “That’s a loser argument, the incoherent ramblings of a DC district court judge and dissenting Federal Circuit judge notwithstanding.”

    It may be. Although, due to it being in accordance with the caselaw it might win in court. Either way, I’d like impartial judges to consider it’s merits as relating to the law rather than their political beliefs. If the USSC wants to step in and change, or “clarify” their exceptions (recently re-confirmed in Bilski I note) then so be it.

    I personally wouldn’t be so quick to dismiss it as a loser in light of what just happened with Bilski MM. Just as it was a clear attempt to patent an abstract idea, these are just as clear of attempts to patent things occuring in nature regardless of what the claim literally appears to cover. And there is simply no getting around that fact. To the outside observer, outside your art, it is clear as day. What you want to control all uses of is the part of the gene. You just happen to be doing it by claiming a compound you made from that part of a gene. That is specifically what Benson was about. Trying to claim an exception indirectly. And trust me bud, judges aren’t from your art, especially not the ones at the top o the pyramid.

  16. I can come up with inventions on the level of the things I see day in and day out in my spare time. I often do. Don’t get me wrong, there are many I see that I couldn’t come up with sans years of work, if even then. But, on the whole, there’s nothing particularly hard about inventing in most areas MM. In fact, I believe you yourself acknowledge that you could invent in your art if the courts didn’t smack you down like in Rochester.

    Except they did. And I don’t cry about it because it’s the right thing to do.

    Unlike banning all patents on isolated genes because genes with the same sequences can be found in “nature.”

    Seems to me your only argument for banning genes under 101 is based on a ridiculous proposition and readily distinguishable propositin from an ancient case that a mineral is a “law of nature”.

    That’s a loser argument, the incoherent ramblings of a DC district court judge and dissenting Federal Circuit judge notwithstanding.

  17. “Same argument would apply to a patent on new method for setting off an airbag that could prevent your infant child from being crushed during a car accident. Some of those airbags might not work correctly because of a mistake at the plant. Therefore, the patent should be busted so more plants could make the airbags.”

    What you are quoting is not an argument, it is a reason to make an argument. Reasons to make arguments are distinct from the arguments themselves MM. They are the cause to start a controversy. Your attempt at turning a reason to make a reason into an argument itself and then paralleling it is thus inapposite. I could address it, but meh, why bother? It is so clearly irrelevant as not to warrant such a response.

    I will merely go so far as to say that yes, there may very well be a reason to come up with an argument against airbag patents. Go ahead, be my guest and come up with an argument against them. You’ll find fairly quickly I think that you can buy airbags from more than one person. Perhaps the patentees just aren’t be arseholes in that area? I don’t know. Maybe nobody has a patent on all airbags? Maybe they never did?

    Trust me, I have plenty of arguments as to why patents ought not be issued, even to things clearly within the useful arts, and plenty of reasons to make them. You’ve read some of them over the last few years. But the thing you’re responding to is merely a reason, not the argument itself.

    The argument itself is a bit harder for you to address, since it is quite clear what the USSC means by laws of nature, and it is inclusive of the natural DNA portions. DNA strands which have all or nearly all of their uses preempt by claims as the one at bar.

    “Um, no”

    Good to hear it. Now maybe you can set aside the nonsense he attempts to use to justify his patentslol and let your position stand or fall on the merits.

    “The distinction is that the work required to identify and prove the utility of an isolated DNA sequence requires far more skill and sweat than the work required to scribble out a new computer-implemented method for ranking your Facebook friends’ favorite hot dog condiments that comprises the steps of determining your friends favorite condiments, assigning them a value and … ranking them”

    I agree that is a distinction, but where you and I differ is that I don’t see that distinction as being terribly relevant to the question of whether or not it gets by 101. Truth be told, I can come up with inventions on the level of the things I see day in and day out in my spare time. I often do. Don’t get me wrong, there are many I see that I couldn’t come up with sans years of work, if even then. But, on the whole, there’s nothing particularly hard about inventing in most areas MM. In fact, I believe you yourself acknowledge that you could invent in your art if the courts didn’t smack you down like in Rochester. Either way, this ease of invention includes the Useful Arts side of your art, and indeed, the software that can be used. All the more reason for you guys to get down to some inventing/authoring o code in your area and stop quibbling with abstractions and laws of nature, including compositions in nature.

    “I understand the ACLU’s position and that position’s appeal to the high-school educated masses. It’s just that their arguments are incredibly short-sighted and based on a childlike understanding of the facts and the patent laws.”

    Channeling NWPA again are we? Please, just set it aside man.

    Now, I could respect your position if you simply believed that perhaps the law does prohibit such patents currently under USSC precedent but that the judicial exceptions ought be changed for one reason or other. But you don’t seem to have accepted that such a change would be needed yet.

    In any event, been good talking to you, got to work hardzors.

    “A single molecule of water is pure water, and most assuredly exists in nature.”

    I thought about that too, but I figured that would be reduction of his statement to absurdity.

  18. Compulsory licensing, like working requirements, are a feature of many patent law systems internationally, for example, Canada’s.

    As we all know, those other countries are fascist socialist dictatorships and are irrelevant to passing legislation in the greatest nation the universe has ever known.

  19. Rather than stand the law on its head to avoid granting patents on what is assuredly patentable material, Congress can deal with the Myriad patents by passing a law of compulsory licensing.

    The bill could specify that some learned body would decide what patents should for e.g. humanitarian reasons be subject to compulsory licensing and on what terms.

    Compulsory licensing, like working requirements, are a feature of many patent law systems internationally, for example, Canada’s.

    The Myriad patents could be then licensed to competitors to assure that more than one test was available to patients for confirmation. Compensation would need to be reasonable, perhaps the same as present royalties, because the stated complaint is not really that costs are too high but that multiple variants of tests for cancer-related genes are not available.

  20. How easy is it to have a mix up at one lab? How about compared to the chances of a mix up at two labs?

    Same argument would apply to a patent on new method for setting off an airbag that could prevent your infant child from being crushed during a car accident. Some of those airbags might not work correctly because of a mistake at the plant. Therefore, the patent should be busted so more plants could make the airbags.

    As I said, your argument is an argument against patents generally.

    the fact that someone will be spurred to design around NWPA’s latest software nonsense, or build upon it, has converted you to his side and your war with him is over

    Um, no.

    The distinction is that the work required to identify and prove the utility of an isolated DNA sequence requires far more skill and sweat than the work required to scribble out a new computer-implemented method for ranking your Facebook friends’ favorite hot dog condiments that comprises the steps of determining your friends favorite condiments, assigning them a value and … ranking them. Moreover, the promotion of progress in curing disease seems to favor the granting “gene patents”. That is why our legislators and courts have seen fit to grant such patents as well as exceptions to the patents (e.g., the research tool exception).

    If I could file a patent on huge classes of molecules, not one of which I have reduced to practice or tested but simply conceived of in the abstract and claimed functionally, that would be one thing. But guess what: the courts have struck down such patents repeatedly (Rochester being the classic example).

    I understand the ACLU’s position and that position’s appeal to the high-school educated masses. It’s just that their arguments are incredibly short-sighted and based on a childlike understanding of the facts and the patent laws.

  21. “Whether or not you have a particular gene mutation is, in most instances, not difficult to determine unambiguously.”

    How easy is it to have a mix up at one lab? How about compared to the chances of a mix up at two labs?

    All I know is that I’ve had tests done before. The company doing one test was soooooo professional that when I called for my results (as opposed to the doctor doing this task, which you’d think he would do) they had significant trouble even finding me in their database. One can only wonder about how well they ensure that the results attributed to the name they finally found really were for me. Oh, and I’m pretty sure I spelled my name correctly on all forms when I had the tests done. And my SSN was correct.

    “The logic of the patent system is that a patent like this encourages others to develop methods of deciding whether your balls need to be cut off that do not rely on the presence of the gene mutation. ”

    Jeb us MM, why don’t you just pull out every canard there is in defense of these claims? Incentive to design around? Really? I can respect your taking the stance that it is a new chemical, leaving aside the “made by man” part (another canard, gj pulling out all the stops). Fine. But when you start on and on with the ridiculous nonsense your position soon starts to appear as weak as NWPA’s on his pet projects.

    “That is how progress is promoted. Or so I’m told.”

    Yes, the tests. Not the genes themselves. So if you guys would kindly get to work on the Useful Arts and leave the abstractions, laws of nature and what have you out of your apps then we’d all be very much obliged.

    Also, shall I take it that now the fact that someone will be spurred to design around NWPA’s latest software nonsense, or build upon it, has converted you to his side and your war with him is over?

    “your interest in getting such a second opinion does not outweigh the public’s interest in honoring tha bargain proposed by the patent system”

    I’ll just wait until your neuter is about to be on and ask you that question.

    “Besides, your self-interest in keeping your family jewels is outweighed by the public’s interest in seeing you balls choppitied.”

    And what of your interest in keeping your girls, and the public’s interest in seeing you without seeing you without your girls? Hmmm?

    And keep in mind, losing your girls or boys is a surgical operation. There is a non-negligible chance of death. Or at least so I understand from what my mom was about to have to do if her cancer got worse. She just has/had stage 0, so don’t get all excited over practically nothing.

  22. 6, as much as you might want to have a second opinion before getting your neuter on, your interest in getting such a second opinion does not outweigh the public’s interest in honoring tha bargain proposed by the patent system. The researcher who discovered that gene deserves to have a dominant patent and the choice of whether or not to license it to others. Besides, your self-interest in keeping your family jewels is outweighed by the public’s interest in seeing you balls choppitied.

  23. “I comprehend “judicial exceptions,” probably for longer than you’ve been born, and this isn’t one of them. Obviously, neither of us will convince the other on this point. Why don’t we agree to disagree and leave it that? Peace.”

    Fine.

  24. Now, if you were about to have your balls chopped off (yours mind you, not some anonymous stranger’s) because a company told you, as if by magic, that you might have a certain mutation in a gene would you appreciate a second opinion from another lab, perhaps using a different methodology?

    The solution to this problem is found in tort law, 6. Whether or not you have a particular gene mutation is, in most instances, not difficult to determine unambiguously. The greater difficulty in most cases is determining whether you are one of the exceptions who is going to get the disease even if you don’t have the mutation or one of the exceptions who is not going to get the disease even if you do have the mutation.

    The logic of the patent system is that a patent like this encourages others to develop methods of deciding whether your balls need to be cut off that do not rely on the presence of the gene mutation. Such methods may be intrinsically more accurate, or they may be more accurate when combined with the sequence detection method. That is how progress is promoted. Or so I’m told.

  25. 6,

    I comprehend “judicial exceptions,” probably for longer than you’ve been born, and this isn’t one of them. Obviously, neither of us will convince the other on this point. Why don’t we agree to disagree and leave it that? Peace.

  26. “No, because Sweet ruling is and remains nonsensical and contrary to controlling Federal Circuit law (i.e., In re Bergy). Face it 6, you’re in over your head and you don’t know it. Go pound some salt.”

    O, well maybe we should sanction the judge also? Give me a break. I’m not even going to bother to look up your In re again. It didn’t hold what you wanted the first time I read it and I doubt it will now.

    The only people here that are “in over their heads” are the ones that simply cannot comprehend the judicial exceptions and the principles of preemption. Aka, you and yours.

  27. “If this is the standard, than Easterbrook should be unable to hear a contracts appeal ever again.”

    So long as Easterbrook at least subjectively believes he is applying the law he doesn’t suffer from the same magnitude of a problem that Rader appears to be having here.

    I imagine that Easterbrook is some famous judge that is well known in lawlyer circles for having done some nonsense. Sorry, I’m not privy to your inside joke.

  28. “The claims do not read on DNA in vivo, nor DNA as a whole. You’re being willfully disingenuous”

    No, I’m not. I know what the claims read on. I’m being particularly “genuous”.

    How so? I know what the practical effect of the patent is. The practical effect is that dam near nothing useful can be done with the relevant gene because of that claim. Preemption, in this case, likely either of a “law of nature” ala a mineral (as from the USSC’s own words) or of an abstract idea, ala that certain mutations indicate a girl (or perhaps a boy also) might have an increased risk of getting breast cancer.

    At the same time I appreciate that it is a new chemical, and I appreciate that it takes a lot of work to find these things, figure out what they do and sometimes to isolate them.

    Then I also notice all the work that is done in this field that isn’t done by the private sector (such as the people that found this gene before Myriad and simply couldn’t/didn’t publish as fast by a week’s time) and notice people not being able to get a fin’ second opinion. I know about tests being done, you send them a sample and, as if by magic (to the end user) a result appears. And I know about this from personal experience (not regarding the breast cancer gene). You don’t know how they came to the result, you just have to blindly trust it.

    Now, if you were about to have your balls chopped off (yours mind you, not some anonymous stranger’s) because a company told you, as if by magic, that you might have a certain mutation in a gene would you appreciate a second opinion from another lab, perhaps using a different methodology? I sure as f know I would. And as a member of the public I sure as f know I don’t appreciate patent law encroaching into these things that can barely even be called a Useful Art and not letting me get a second opinion.

    On the whole, I come to the conclusion that I’d appreciate some impartial judges deciding the issue. Ones that will apply the law. If for no other reason so that it will be clearly apparent to congress if the law needs to be changed, if such a thing is called for.

  29. “Oh so because your position lost at the DC it should be bounced and sanctioned? I read your nonsensical piece before and it makes no more sense now than it did then.

    6,

    No, because Sweet ruling is and remains nonsensical and contrary to controlling Federal Circuit law (i.e., In re Bergy). Face it 6, you’re in over your head and you don’t know it. Go pound some salt.

  30. “If the law does not provide an answer on a particular issue — especially a hot-button issue — then the judge will tend to use his or her own political leanings to reach the answer. The Section 101 debate over gene patents appears to fall into this category.

    I appreciate your take on that D. However, it still seems to me like we should expect a judge to recuse himself from any decision that he feels like he is going to have to make on political grounds. If that is not standard practice, and what is expected of judges, then I suppose I’m just not well informed on this issue and the public needs to ask more of its judges.

    That goes double for situations as here, where the law clearly does provide such an answer. Those who feel left out in the dark on that need to stop fighting accepting the holdings of BFD and Bilski.


  31. “the legal system” is in cahoots with those who want to own your DNA.”

    It does appear that way. And it appears that it has been for quite some time.

    The claims do not read on DNA in vivo, nor DNA as a whole. You’re being willfully disingenuous.


    “The arrogance of the ACLU hath no limits. This motion is on par with the rest of this nonsensical lawsuit. And it should be trounced as well as sanctioned.”

    Oh so because your position lost at the DC it should be bounced and sanctioned? I read your nonsensical piece before and it makes no more sense now than it did then.

    That’s odd. When I read EG’s post I got the impression that it was because the ACLU had asked that a judge recuse himself when he had not even been assigned to hear the appeal, and because the evidence of “partiality” provided in the motion was flimsy at best. If this is the standard, than Easterbrook should be unable to hear a contracts appeal ever again.

  32. 6 – Here’s how I take Judge Rader’s point.

    If the law does not provide an answer on a particular issue — especially a hot-button issue — then the judge will tend to use his or her own political leanings to reach the answer. The Section 101 debate over gene patents appears to fall into this category.

  33. “the legal system” is in cahoots with those who want to own your DNA.”

    It does appear that way. And it appears that it has been for quite some time.

    “The arrogance of the ACLU hath no limits. This motion is on par with the rest of this nonsensical lawsuit. And it should be trounced as well as sanctioned.”

    Oh so because your position lost at the DC it should be bounced and sanctioned? I read your nonsensical piece before and it makes no more sense now than it did then.

  34. Now that this issue has progressed from the backwater Patentdocs and emerged on PO can someone be so kind as to tell me why more lawlyers are not in the least bit concerned about a judge who believes that the law is not applicable to a particular decision before him and that he will have to rule based on his political beliefs? Do we expect judges to apply the law or judge on their political beliefs?

    Thanks in advance.

    “On the flip side, whose fault is it? It is in part the FedCir’s fault, and in part Rader’s fault. If he really believes what he is saying, he should ensure that the FedCir uses the case as a vehicle to articulate a “real…legal…standard”.”

    You don’t seem to get it, he doesn’t believe the law, that is, the written statute (and possibly the judicial exceptions) has anything to do with the issue, and that he’ll have to rule based on a political belief. How is he going to articulate such a real legal standard when he specifically believes that there isn’t any? That is to say, if he believes that the whole issue doesn’t even involve the law, it involves only politics, then how could he articulate such a standard? He plainly believes no such standard could exist because to him the law doesn’t even apply.

    “Pure water does not exist in nature.”

    link to uk.answers.yahoo.com

    Idk there Alan. Just how pure is pure? Pure water used in industrial processes with less than .00001% contamination might not exist, but that level of purity is hardly required for water to be called “pure” in the mainstream.

    “Thank goodness for Rader. He gets it that the do’ers of the world fix things and make the world a better place, and the putzes (read MM and 6) sit back and criticize and claim their aunts could of done that. Why I could of done that if I had felt like it.”

    So because Rader can spout off a non sequitur that somehow says something about me?

    No, tard, what Rader doesn’t seem to realize, along with the rest of you tards, and likely in large part because of you tards, is that pure water doesn’t simply materialize out of thin air. It takes advances in the useful arts to make it widely available. The advances of the useful arts are what should be patentable, not the purified water itself, which, to a very high degree, does exist in nature.

  35. In short, seems like bad lawyering on plaintiffs’ part. I was at the Fordham conference and heard the exchange. If anything, Rader did Ravicher a favor by bringing attention to what I agree is a significant potential hole in Ravicher’s argument. The point being that Ravicher would likely benefit by making sure this issue was briefed particularly well.

    Undboubtedly, Judge Rader can sometimes appear…a bit…let’s say “haughty.” But good grief, this doesn’t call for filing recusal motions. Thank the Judge for calling out this issue, and instead put your energy into framing a good rebuttal.

  36. “Judge Rader reportedly responded to a comment by Professor Whealan (and former Rader clerk) that there are no real “legal standards for making [a Section 101] decision…””

    Absolutely correct. No…real…legal…standards.

    No way a judge should recuse himself for telling it like it is. Hats off to Rader for at least recognizing the situation.

    On the flip side, whose fault is it? It is in part the FedCir’s fault, and in part Rader’s fault. If he really believes what he is saying, he should ensure that the FedCir uses the case as a vehicle to articulate a “real…legal…standard”.

    Hey Rader J.–anybody can criticize, but you’re actually in a position to DO something about it.

  37. It be sowing publicity. It be sowing “the legal system” is in cahoots with those who want to own your DNA.” It knows that the CAFC will be ruling against it and this be a point for the Supremes – It knows that the Supremes don’t like the CAFC as it is – “an enemy of my enemy is my friend” and all that.

    Joe Plumber being aimed at too – See how unfair the courts are? We know they know we know that they are biased and they not do anything about it.

  38. One other thing I should add is that this recusal motion makes no tactical sense. Asking the Chief Judge to recuse himself without a good excuse (and I see none here) can only rile up the Federal Circuit as a whole. I truly hope the ACLU reaps what it has sown here for this completely misguided motion.

  39. The arrogance of the ACLU hath no limits. This motion is on par with the rest of this nonsensical lawsuit. And it should be trounced as well as sanctioned.

    In fact, Myriad’s brief in opposition points out a prior unsuccessful effort to recuse the late Chief Judge Markey with language that the ACLU should of have heeded before filing this piece of drivel: “Absent a factual showing of a reasonable basis for questioning his or her impartiality, or allegations of facts establishing other disqualifying circumstances, a judge should participate in cases assigned. Conclusorty statements are of no effect. Nor are counsel’s unsupported beliefs and assumptions. Frivoloous and improperly based suggestions that a judge recuse should be firmly declined.” Maier v. Orr, 758 F.2d 1578, 1583 (Fed. Cir. 1985)(denying moiton to recuse Chief Judge Markey).

  40. Agreed.

    Judge Michel was a guest at an advanced patent drafting workshop I attended in Australia many years ago. It would certainly have been a poorer experience without his presence and input.

    I also don’t think it should be underestimated how much judges can learn from attending such events.

  41. I agree about the importance of judges participating in educational conferences and meeting ordinary practitioners. Judge Rader has been a very welcome visitor to such a conference in the UK.

  42. Sometimes I have tremendous admiration and respect for the ACLU’s work, and other times I can’t understand for the life of me what they’re thinking. This motion for recusal falls into the latter category.

    The FCBA is right — if these brief, general comments warrant Chief Judge Rader’s recusal from a 101 case, then judges will have to make themselves even more isolated from the bar and public than they already are. Motion denied if it comes to that (I hope).

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