Amgen v. Sanofi: Generally an Attack on Functional Claim Language

by Dennis Crouch

In their forthcoming article, Professors Dmitry Karshtedt, Mark A. Lemley & Sean B. Seymore argue that the Federal Circuit has improperly and unduly limited the ability of chemical and biotech innovators to obtain genus claims — i.e., claims that cover “not just one specific chemical but a group of related chemicals.” The Death of the Genus Claim, 35 Harv. J.L. & Tech. (forthcoming 2021).  Now, the trio (along with others) have taken their prior work and converted it to an amicus brief supporting en banc review in the pending case of Amgen Inc. v. Sanofi, Docket No. 20-01074 (Fed. Cir. Oct 24, 2019). Amgen v. Sanofi – Lemley Brief.

The focus of the case is on “genus claims” where the genus is defined by functional limitations.  Here, the patent covers antibodies that bind to a certain protein-molecule [PCSK9] in a certain way [to block LDRL binding].  However, the claim does not affirmatively spell-out the structure of the claim.

An isolated monoclonal antibody [that] binds to [one of the residues of PCSK9] and … blocks binding of PCSK9 to LDRL.

In its decision, the Federal Circuit held that it would be very difficult for a patentee to enable such a claim because there are thousands (or potentially millions) of molecules that might reasonably fit this definition.  It would take undue experimentation to test each and every one of these myriad prospects.  Karshtedt, Lemley, and Seymore argue that the Federal Circuit’s approach here is problematic:

That is an impossible burden, and it is not one the law imposed until recently. It represents “a categorical shift in thinking away from teaching the PHOSITA and towards a precise delineation of the boundaries of the claim.”

Brief (quoting their article).  In its decision, the court makes clear that it is still technically possible to enable such a claim, but effectively admits that it is not practically possible.

While functional claim limitations are not necessarily precluded in claims that meet the enablement requirement, such limitations pose high hurdles in fulfilling the enablement requirement for claims with broad functional language.

Amgen.

Functional Claim Language: The decision briefing focuses on chemistry and biotech, but the truth is that functional claim limitations are most often found in claims directed to mechanical, electronic, and software fields.  These functional claims – to the extent they encompass thousands (or potentially millions) of embodiments – are equally susceptible to the transformed approach.   For many years, these two arenas have been treated differently for enablement purposes — with courts often classifying innovations as either within the predictable or unpredictable arts.  However, Amgen also shows substantial crossover.  In other words, Amgen is generally another attack on claims defined by functional limits.

On point, the Amgen court repeatedly cites and references the enablement discussion found in the lip synchronization software case of McRO, Inc. v. Bandai Namco Games Am. Inc., 959 F.3d 1091 (Fed. Cir. 2020). Amgen focused particularly on FN2 from that case:

In cases involving claims that state certain structural requirements and also require performance of some function (e.g., efficacy for a certain purpose), we have explained that undue experimentation can include undue experimentation in identifying, from among the many concretely identified compounds that meet the structural requirements, the compounds that satisfy the functional requirement.

Id.  Two additional amicus briefs have been filed in the case:

Briefing continues.

Amgen v. Sanofi: Who Decides Full Scope Enablement

Functional Claim “Raises the Bar for Enablement”

55 thoughts on “Amgen v. Sanofi: Generally an Attack on Functional Claim Language

  1. 8

    Sometimes I have to wonder if people read Supreme Court cases at all. I’m a fan of Lemley, and he’s correct that scope of enablement and written descriptions are not great tests. But he misses the fact that they generally harmless error. Moreover, the brief sets up the false dichotomy that either the genus claims are allowed or applicants will never be appropriately compensated, but that’s ridiculous. Applicants could claim in means-plus.

    The telephone cases are not in his favor. The claim there was for “The method of, and apparatus for, transmitting vocal or other sounds telegraphically, as herein described, by causing electrical undulations, similar in form to the vibrations of the air accompanying the said vocal or other sounds, substantially as set forth.”

    The court distinguished from Morse It may be that electricity cannot be used at all for the transmission of speech except in the way Bell has discovered, and that therefore, practically, his patent gives him its exclusive use for that purpose, but that does not make his claim one for the use of electricity distinct from the particular process with which it is connected in his patent. It will, if true, show more clearly the great importance of his discovery, but it will not invalidate his patent.

    Bell essentially claimed in means-plus, while Morse claimed in pure function. It may well be that, in fact, means-plus claiming has the effect of pure functional claiming (in the event that one has invented the entire scope of the function) but that is a conditional that can’t be ignored.

    Chemical patentees have the option of claiming in means-plus. What they cannot do is try and extend their monopoly to inoperative embodiments and undiscovered distinct functions.

    See Holland Furniture v Perkins Glue: Thus the inventor who advances the art by discovery that a certain defined material may be combined in a product useful for certain purposes seeks to extend his monopoly to any product which may subsequently be made from materials not within any defined range described in the patent, but which is likewise useful for those purposes.

    But an inventor may not describe a particular starch glue which will perform the function of animal glue and then claim all starch glues which have those functions, or even all starch glues made with three parts of water and alkali, since starch glues may be made with three parts of water and alkali that do not have those properties.

    In other words, the inventor who describes [species] may not describe [species] and then claim [functional result of using species] or even [genus], since [genus may be ineffective].

    Similarly The Incandescent Lamp Patent says If the patentees had discovered in fibrous and textile substances a quality common to them all, or to them generally, as distinguishing them from other materials, such as minerals, etc., and such quality or characteristic adapted them peculiarly to incandescent conductors, such claim might not be too broad. If, for instance, minerals or porcelains had always been used for a particular purpose, and a person should take out a patent for a similar article of wood, and woods generally were adapted to that purpose, the claim might not be too broad, though defendant used wood of a different kind from that of the patentee. But if woods generally were not adapted to the purpose, and yet the patentee had discovered a wood possessing certain qualities, which gave it a peculiar fitness for such purpose, it would not constitute an infringement for another to discover and use a different kind of wood, which was found to contain similar or superior qualities. The present case is an apt illustration of this principle. Sawyer and Man supposed they had discovered in carbonized paper the best material for an incandescent conductor. Instead of confining themselves to carbonized paper, as they might properly have done, and in fact did in their third claim, they made a broad claim for every fibrous or textile material, when in fact an examination of over six thousand vegetable growths showed that none of them possessed the peculiar qualities that fitted them for that purpose. Was everybody then precluded by this broad claim from making further investigation? We think not.

    Again, discovery of a [genus characteristic] makes [a genus claim] not be too broad, but discovery that only a [species] works, it would be improper to claim a [genus]. Here, Claim 3 to a species is valid, but the genus claim was not.

    That being said, the best way to read all these pre-52 cases is not that there is a violation of present-day 112a, but that there is a violation of present-day 112b. The claims fail not because of scope of enablement (there ought to be no scope of enablement test in a well-practiced 112b world) or for written description (which does exist in some manner as the abstraction part of the judicial exception analysis), but because they fail to point out and particularly claim what was actually invented. In each of the above cases the patentees obviously had at least one enabled species, but the discussion (with the exception of Edison’s 6000 experiments) does not turn on whether that one species was enabled, or the proportion of that enabled species to the whole. Rather the discussion centers on the magnitude of the relationship between the thing discovered and the thing claimed. To the extent that claims depart from the examples of the specification, that scope change should be judged under the reasonable certainty standard of 112b and not the notion that interrogating what swaths of the breadth are unenabled is an undue experimentation. As shown above, that standard is not likely met but it is not a categorical failure.

    The issue is easily solved – just claim in means-plus. That doesn’t give as broad of a scope as the entire genus or a functional claim, but it does have the (significant) virtue of being valid. That has the benefit of properly awarding equivalent species to the original inventor while allowing follow-on inventors (who could be the original inventor mind you) to discover superior species within the genus. That incentivizes both further experimentation and further disclosure by both the original inventor and other inventors, rather than unjustly enriching the original inventor by preventing other inventors from competing with their superior discoveries. The whole point of the system is to encourage the Edisons to test the other 6000 options to see if there is a superior fibrous material than carbonized paper.

    1. 8.1

      tl, dNr

      Also – as is usual from Random, he needs to glom on to more than merely the sound bites that reinforce his desired viewpoint.

      It is quite evident that he suffers from some severe confirmation bias – to the point of warpage.

    2. 8.2

      You lost me at ‘fan of Lemley.’ He’s the king of misrepresentation by omission in my view. And a paid advocate posing as Amicus. Certainly an outlier here that he is on the side of a patent owner. Collective commons. Pfft.

  2. 7

    The Summary of the argument on page one states:

    The central feature of patent law in the life sciences industries is the genus claim. Without such claims, a competitor could make a minor change to the chemical the patentee invented and avoid liability while capturing the heart of the invention.

    I would LOVE every student in each of the professor’s classes to ask WHY it seems that “life sciences industries” appears to be singled out for special treatment.

    Minor changes to avoid liability while capturing the heart of an invention is universally covered under 35 USC 103, and attendant Doctrine of Equivalence.

    This applies to ALL innovation across all art units.

    Is there a (valid) reason for this attempted “Divide and Conquer” approach?

    1. 7.1

      It is easy to understand why this happens in the life sciences although the reasons, to some people, may not be considered “valid”. Any single patent is often worth billions of dollars. Quite often, especially in Hatch Waxman litigation, the brand owner only needs one or two claims out of a slew of patents to survive in order to keep a generic competitor from launching the generic competition. That can mean billions of dollars for the brand owner. That means the brand owners are going to try and claim anything and everything possible and hope that something sticks well enough in order to prevent the launch. It depends on which side of the “v” you are on as to deciding whether or not this is a “valid” reason.

      1. 7.1.1

        Dvan,

        While I “get” that you want this to be viewed through a lens of “MONEY drives validity,” that view is NOT appropriate for the legal discussion of validity.

        Quite in fact, that driver is exactly why these professors SHOULD BE seeing pushback from their students.

        Might (as in, the Mighty Dollar) does not make right when it comes to the application of legal principles across all areas of innovation.

        What side of the ‘v’ you are on is a complete non-sequitur to the legal principle view that I am drawing attention to.

      2. 7.1.2

        “Biologics” AKA ‘life sciences’ already get special treatment via the FDA – and the true domestic monopoly grant of FDA approval via the AIA compromise.

    2. 7.2

      “Minor changes to avoid liability while capturing the heart of an invention is universally covered under 35 USC 103, and attendant Doctrine of Equivalence.”

      I don’t follow. 35 USC 103 may keep a competitor from obtaining a valid patent on their slightly different drug product, but it does not have any effect on the FTO question.

      The competitor will have FTO if their compound falls outside the scope of a narrow product claim. Hence, the utility of the genus claim.

      1. 7.2.1

        The legal doctrine cuts both ways – and hence, why the push back on the professors to explain why THIS art unit appears to be being sought to be granted special status.

  3. 6

    “In its decision, the Federal Circuit held that it would be very difficult for a patentee to enable such a claim because there are thousands (or potentially millions) of molecules that might reasonably fit this definition. It would take undue experimentation to test each and every one of these myriad prospects. Karshtedt, Lemley, and Seymore argue that the Federal Circuit’s approach here is problematic:

    That is an impossible burden, and it is not one the law imposed until recently. ”

    Is that right? The Incandescent Lamp Patent (159 US 465 (1895)) held a patent invalid because the patent described only one species in a genus claim, and that it would require “experimentation” to determine whether other species in the genus would result in a workable invention.

  4. 5

    It seems to me that there is deliberate confusion going on between chemical “genus” claims and “functional” claims, and that they are not the same?

    1. 5.1

      Definitely. It is harder to find chemical genus claims phrased in terms of structure being struck down on enablement/written description grounds (although the law review article cites a few) than it is to find such claims being struck down when they are phrased in functional terms.

    2. 5.2

      This is not a new occurrence — and our pal Random’s musings are often drenched in that very confusion.

    3. 5.3

      “genus” claims and “functional” claims, and that they are not the same?

      They are the same for the underlying purpose of they fail to describe what structure actually causes the result. If you have a chemical genus that isn’t enabled over its scope, you’ve actually failed to adequately identify the structure that causes the result. If you have code that is limited by function, you’ve also failed to adequately identify the structure that causes the result.

      1. 5.3.1

        You are (well) aware that PURE structural claiming is not actually required, right?

        (on only a slight tangent, the even minor use of “comprising” renders claims to be less than PURE structural claiming, eh?)

        1. 5.3.1.1

          You are (well) aware that PURE structural claiming is not actually required, right?

          But claiming the invention is still required, right? You are aware that if these applicants had actually correctly identified the structure that achieved the result, the defendants would have had no enablement argument to make, right?

          1. 5.3.1.1.1

            You see Random, this is the type of response that shows your lack of awareness and appreciation of the legal principles driving theses types of discussions.

            Your retort of “But claiming the invention is still required, right?” is met — fully – with a “yeah, so what?”

            The retort does NOT diminish my point provided in any manner.
            The retort does NOT help your position in any manner.

            Your ‘tendency’ towards viewing claiming as necessarily being an item only satisfied through PURE structural claiming is STILL legal error.

            Whether or not any actual use of PURE structural claiming does – or does not – do anything is simply a non sequitur to the legal point presented.

            So, I ask again:

            You are (well) aware that PURE structural claiming is not actually required, right?

            1. 5.3.1.1.1.1

              You are (well) aware that PURE structural claiming is not actually required, right?

              You keep asking me whether I understand that pure structural claiming is required in the context of cases that always seem to be striking down non-pure structural claims. So let me respond by saying this – what is required is compliance with the statutes, and it certainly seems like non-pure structural claiming seems to not comply with the statutes pretty often, wouldn’t you say?

              1. 5.3.1.1.1.1.1

                I keep on asking you a rather simple and direct question.

                There is NO “context” element that you need to try to read into the question.

                Why not just answer that question?

  5. 4

    You are only entitled to claim what you’ve clearly invented. Did the patentee invent “An isolated monoclonal antibody [that] binds to [one of the residues of PCSK9] and … blocks binding of PCSK9 to LDRL,” or did the patentee only inventor certain isolated monoclonal antibodies that “bind[] to [one of the residues of PCSK9] and … blocks binding of PCSK9 to LDRL?” I am not a chemical PHOSITA, so I don’t know whether there is sufficient evidence in the specification of either positions.

    However, in the computer arts, especially “recently granted” continuations that have priority dates in the mid 2000s, this is definitely an issue where the claims do not match what the inventor actually invented.

    1. 4.1

      ^ this one gets it.

      1. 4.1.1

        ^^ both of these do NOT get it.

  6. 3

    Biogen BMS Corning Brief (The jury’s role in determining enablement should be restored, etc.).

    From BMS’ lips to God’s own ears. I really do not care whether written description becomes a question of law, or whether enablement becomes a question of fact. One way or the other, however, all of §112(a) should be one thing or the other. There is only one statute. It makes no sense to think that §112(a) is a question of fact when analyzing the words “written description,” but a question of law when analyzing the words “as to enable.”

    I suppose that I have just the slightest of preference for the idea that all of §112(a) should be an issue of fact, as that would make it slightly more clear that the “person skilled in the art” of §112(a) is not the same person as the “person having ordinary skill” of §103. Really, though, it would be enough just to have the two aspects of §112(a) be the same.

    1. 3.1

      “I suppose that I have just the slightest of preference for the idea that all of §112(a) should be an issue of fact, as that would make it slightly more clear that the ‘person skilled in the art’ of §112(a) is not the same person as the ‘person having ordinary skill’ of §103. Really, though, it would be enough just to have the two aspects of §112(a) be the same.”

      I assume you’re jesting.

      1. 3.1.1

        Not jesting. It is not a point about which I feel super strongly, but Title 35 is open to two different readings (one in which the skilled person of §103 is the same as the skilled person of §112, one one in which those two “skilled person”s are not the same), and I have a weak preference for the reading in which they are not the same. There are two reasons for this weak preference.

        (1) First, Congress did not use the same turns of phrase in the two sections. One “normally presume[s] that, where words differ… Congress intended the differences that its language suggests… .” Burlington N. & Sfr Co. v. White, 548 U.S. 53, 63 (2006).

        (2) The public policy purpose intended by the obviousness requirement is different than the role served by the enablement & written description requirements. The enablement requirement is there to ensure that the person claiming an invention has disclosed enough to enable real live, walking around artisans to practice the invention. You should be able to take a transistor patent on its grant date to a random sample any ten American electrical engineers and ask them “read this, and tell me if you know how to make the transistor that is claimed.” If they all say “yes.” that should be conclusive evidence of enablement, and if they all say “no,” that should be conclusive evidence of non-enablement. The “skilled person” for enablement purposes should be a real person.

        By contrast, the obviousness requirement is intended to ensure that the patent act never takes from the public that which was already in the public domain. Rich, “Laying the Ghost of the Invention Requirement” 1 APLA Q. J. 26 (1972-1973). Therefore, obviousness is evaluated from the perspective of a person familiar with the entire content of the prior art. Obviously, no individual alive is actually acquainted with all prior art, so the “person having ordinary skill” of §103 is not a real person. Rather, the §103 PHOSITA is a legal fiction. If you took the same transistor patent above on its filing date to a random sample of ten U.S. electrical engineers and asked them “is this transistor obvious,” even if all ten said “no,” that would not really be conclusive evidence that it was not obvious. It could be that the prior disclosure that makes it obvious was published a week before in Russian, or filed six months before by a competitor firm as a non-provisional application. These ten engineers cannot reasonably be expected to know about that Russian publication or the as-yet-unpublished patent application, but that is because none of the ten are the PHOSITA, even though each of them is a “person skilled in the art.”

        1. 3.1.1.1

          Interesting. I had never noticed that “discrepancy” between 112 and 103. The word “ordinary” as it relates to the person of skill does not appear in 112.

          I think the “person” should be the same for both 112 and 103. Just my opinion. Haven’t researched whether courts have “presumed” that the “person” of 112(a)/1st paragraph is the same as the “person” of 103. Maybe one of Dennis’s law students can do that.

          1. 3.1.1.1.1

            Yeah, you can make a fine argument for either reading. I think that the patent system would function slightly better if we made a distinction between the 103-PHOSITA and the 112-PSITA, but the patent system will function basically fine even if we treat these two as the same.

            1. 3.1.1.1.1.1

              How annoying is Dunning? Or is he Kruger?

              1. 3.1.1.1.1.1.1

                The irony here is that AAA JJ himself becomes one (or the other) when a Liberal Left mouthing point emerges.

                He really does become indistinguishable from Malcolm Mooney during the height of MM’s rants.

              2. 3.1.1.1.1.1.2

                Perhaps Walter Mitty is the more apt analogue? Hard to say.

        2. 3.1.1.2

          Most definitely NOT so.

          BOTH are necessarily legal fictions, as the requirement of enablement is not nearly as cut and dried as Greg provides (i.e., without undue experimentation), and the shear logistics and variety of “real person” concerns (lab? multi-million dollar lab? Team of lab workers?) must be understood in the sense that these are LEGAL requirements.

          Further, there is every reason to tie the two together: as I have often provided in the sense that by tying them together, you necessarily constrain the Court from writing in a runaway condition of hyper-capability on one end, divorced from the considerations (on the other side of the coin) that applicants have to live up to.

          In short: when the Court super-empowers PHOSITA in their attempt to make the impact of 35 USC 103 stronger, this has a direct — and necessary — impact on 35 USC 112.

          To separate this is beyond irresponsible.

    2. 3.2

      And the last option is to make it a mixed question of law and facts. I would favor that.

      Although the argument that claims should be interpreted in a way keeps them valid is no longer popular, I think claims should be interpreted in a way that maintain their validity under 112(a). That is a complicated way to say that the litteral interpretation of the claims should cover what was invented accordind to the specification.

      Since claim interpretation is a mixed question of law (text analysis) and facts (how some terms would have been interpreted at a particular date by a particular audience), I would think validoty under 112(a) is also a mixed question.

  7. 2

    Now, the trio (along with others) have taken their prior work and converted it to an amicus brief supporting en banc review… of Amgen Inc. v. Sanofi… The focus of the case is on “genus claims” where the genus is defined by functional limitations… Karshtedt, Lemley, and Seymore argue that the Federal Circuit’s approach here is problematic… .

    I read the law review article. It was very well researched and full of useful citations that I have noted for future use. For all that, however, I think that the authors’ thesis is misguided.

    It is not that the standard for enablement of functional genus claims in the chem/bio arts has changed. It is that the technologies being claimed have changed.

    Back in the 80s and 90s (when many of these “antibody that binds [X]” claims were written), the sorts of antibodies that inventors were claiming were polyclonal antibodies. The way you make a polyclonal antibody is that you inject a mouse (or rabbit, or hamster, or goat, etc) with a particular antigen, and then a few weeks later you bleed the animal and collect the serum. The serum will be full of all sorts of antibodies, including a variety of different antibodies responsive to your antigen of interest. Even today, there is no technologically practical way to sequence the CDRs of all the target-responsive antibodies in that polyclonal serum. Therefore, if the CAFC had required that one claim the antibodies in those polyclonal sera according to CDR sequence, this would effectively have meant that there could be no patent protection for antibodies.

    Not only would this policy have been counterproductive to the ends that the patent system is intended to further, but it would not have even been consistent with the words of the statute, which merely require that the specification “contain a written description of the invention, and of the manner… of making… it, in such full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains… to make… the same… .” When you raise an antibody by injecting an animal, the important thing to describe with precision is the antigen used. If you can be precise enough about the details of the antigen, then other skilled artisans will be able to replicate your work, even without details about the CDRs of each antibody raised.

    Nowadays, however, almost no one is claiming polyclonal antibodies. Amgen and Sanofi, for example, are not fighting about who controls the IP around a polyclonal. Rather, they are fighting over a monoclonal antibody. In the same way that it would have been impossible to disclose CDR sequence data for polyclonal sera back in the day, it is almost trivially easy to describe CDR sequence data for monoclonals. Therefore, it makes sense for the CAFC to require such disclosure (and precision of claiming), even if it did not make sense to do so in older cases. Different technology requires different ways of describing in order for the skilled person to replicate.

    Moreover, the ends which the patent law is meant to further are better served by requiring precise description of the antibody when one is claiming a monoclonal, just as they were better served by requiring precise description of the antigen back when one was claiming a polyclonal. It is the same statute and the same standards, but when one changes the technology to which they same statutes and standards are being applied, then it will necessarily follow that the spec and claims sufficient to capture each technology will look different.

    There really is no more than a superficial inconsistency between how the CAFC was handling these functional genus claims back then and how it is handling them now. Rather, at the deeper and more meaningful level, the CAFC’s handling is entirely consistent. The tech has simply moved on since then.

    1. 2.1

      Thank you for your thoughtful comment. That being said, let me be the first to declare that you don’t understand what is going on because the CAFC wants to kill patents and eat all the children.

      1. 2.1.1

  8. 1

    I will say that for 15 years I have said that the description of molecules is as functional as claims to EE/CS/Mech inventions.

    You see how twisted things become when you misrepresent what is happening in information processing claims? You can’t have a consistent jurisprudence when you get the science wrong and misrepresent how people skilled in the art work.

    This is a direct result of previous work by Lemley of attacking functional claiming in all the AUs.

    1. 1.1

      It is also interesting to me that this goes along with the push of the anti-patent judicial activists to try to bifurcate chemical from EE/CS/Mechanical so Lemley here is pushing for special rules for the chemical arts when, in fact, this is the same thing that is going on in EE/CS/Mechanical.

      Basically, it isn’t hard to understand when you understand the underlying science. There are just a lot of solutions in all innovation and it has to be described functionally. I have quoted from engineering books used at MIT that state exactly this and state that they use functional language to represent the infinite set of known solutions.

      This is a continuation on the part of Lemley to weaken patents for all but the chemical arts.

      1. 1.1.1

        This is a continuation on the part of Lemley to weaken patents for all but the chemical arts.

        100% disagree. Strong standards for §112 compliance strengthen—not weaken—patents.

        1. 1.1.1.1

          I wonder if Greg thinks that “Flash of Genius” would strengthen or weaken patents…

    2. 1.2

      And I would challenge these authors to tell us how this is any different than the other art units–because it is not.

      1. 1.2.1

        Agree 100%. The standard for computers and for chemicals should be the same. I think that Amgen v. Sanofi was a good decision precisely because it brings the standard for functional chemical claims in line with the standard for functional computer claims—it makes both more demanding.

        I gather that others would prefer that the standard be more freewheeling for both chemicals and computers. I disagree, but fair enough. One way or the other, however, the standard should be the same for all art fields. There is only one §112, and it applies equally to all technologies.

    3. 1.3

      On personal note, it is sad to see an anti-patent judicial activist at GWU Law School, which used to be one of the last bulkheads protecting the patent system.

      1. 1.3.1

        I’d imagine that SV gave GWU a few million and bought their soul.

        1. 1.3.1.1

          Notice that Lemley’s biggest impact on patents is that he has facilitated the hiring of anti-patent judicial activists had 10’s of law schools. I’d imagine that these are backed up with millions of dollars in “donations” to the law schools. Be interesting to see how the mechanics of this has worked and what Lemley’s involvement has been in the hiring of all the anti-patent judicial activists law “professors.” I think a better name would be large corporate advocate hired to push anti-patent judicial activists positions for large corporations and continue to take money from large corporations as their clients.

        2. 1.3.1.2

          I’m still waiting for that check! Maybe my brief in Oil States might have something to do with that snag.

          1. 1.3.1.2.1

            Your check from Lemley probably got crossed in the mail with your check from George Soros.

            Congratulations on attracting the attention of the wing nut faction of this blog’s posters.

            Enjoy your blood money.

            Lulz

            1. 1.3.1.2.1.1

              Oh AAA JJ again another fact free opinion. Read the NY Times article about Lemley making many millions from burning down the patent system or his association with Google. Or read the NY Times article about Google paying up to $120K for papers published in law journal articles based on abstracts written by Google. Or read about the SV firms being in the White House everyday during the Obama administration. Etc.

              You hurl the ins ults with abandon AAA JJ and back them up with zero facts.

              1. 1.3.1.2.1.1.1

                “You hurl the insults with abandon AAA JJ and back them up with zero facts.”

                Said the kettle to the pot.

                For example, please cite some cases proving your uninformed accusation that Judge Moore is one of the worst Federal Circuit judges.

                1. Can you go back to the last case that patentlyo had a post about where she was the writer of the opinion and read my comments please.

              2. 1.3.1.2.1.1.2

                “You hurl the ins ults with abandon AAA JJ and back them up with zero facts.”

                Said the guy who has anonymously, on multiple occasions on this site, alleged that J. Stoll is “mentally unstable” (exact quote). Based on his “personal interactions” with her (again, exact quote). And also claimed that numerous anonymous “other people” say the same thing about her.

                You’re a loon and you can GFY.

                1. SO…. you are not denying that you are just like him – and yet STILL want to label him a loon and to tell him to GFY….?

                  You do realize that YOU are still in that same bucket, right?

      2. 1.3.2

        Who at GWU did you have in mind as a “bulkhead protecting the patent system.” When I think of a law school full of pro-patentee faculty, I think of GWU’s near neighbor—George Mason. I do not recall GWU ever being notably different from any other law school in its faculty’s approach to patent law.

        1. 1.3.2.1

          Yes GWU Law School had lots of strong patent supporters. Not going to bother to list them as I don’t feel like looking them all up.

          1. 1.3.2.1.1

            Fair enough, of course. It is not a super important point.

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