Federal Circuit Flips “Negative Claim Limitation” Decision after Change in Panel Composition

By Chris Holman

Novartis Pharms. Corp. v. Accord Healthcare, Inc., 2022 WL 2204163, — 4th —  (Fed. Cir. June 21, 2022)

Here we have a case in which a petition for rehearing by the Federal Circuit leads to a flipped decision that appears to be the consequence of a change in panel composition.

In the original decision, authored by Judge O’Malley and decided January 3, a divided panel upheld a district court’s determination that the patent claims at issue were not invalid for failure to satisfy the written description requirement. The Federal Circuit agreed to rehear the case, but the composition of the panel rehearing the case was altered by the replacement of Judge O’Malley (who retired in March) with Judge Hughes. The reconfigured panel flipped the result of the earlier decision, this time reversing the district court.  The second decision was authored by Judge Moore, the dissent in the original decision. Judge Linn, who sided with Judge O’Malley in the original decision, found himself writing in dissent the second time round.

The relevant issue before the court was whether a negative claim limitation was adequately supported by the priority patent application. The claims are directed towards methods of treating relapsing-remitting multiple sclerosis (RRMS) through the administration of fingolimod (an immune suppressant) “at a daily dosage of 0.5 mg, absent an immediately preceding loading dose regimen.”  The “no loading dose” limitation was added by amendment during prosecution in order to overcome an obviousness rejection.  A loading dose is a “higher-than-daily dose,” usually given as the first dosage in a dosing regimen.   It was undisputed that loading doses were well-known in the medical field generally, and that loading doses have been used with some medicaments used in the treatment of MS.

The priority application does not explicitly mention loading doses, let alone the absence of a loading dose, but the district court nonetheless found implicit support for the negative claim limitation in two examples provided in the specification (one a prophetic human clinical trial, the other an experiment conducted in rats) which disclosed dosage regimens that did not involve the use of an initial loading dose. There was expert testimony to the effect that a person of skill in the art (POSA) reading the examples would have understood them as being “complete,” and as such the fact that the examples do not mention a loading dose implicitly discloses a dosage regimen that is not preceded by a loading dose.

In the original decision upholding the district court’s decision as not erroneous, Judge O’Malley emphasized that the majority was not instituting a “new and heightened standard for negative claim limitations,” and acknowledged that the disclosure need not describe a limitation in haec verba.  Writing in dissent, Judge Moore argued that the “no loading dose” limitation could not possibly find adequate support in a patent specification that fails to even mention loading doses.

Writing for the majority in the second opinion, Judge Moore reiterates her position that the district court clearly erred in finding written description support for the “no loading dose” limitation. While she acknowledges that a negative claim limitation does not necessarily require explicit written description support when the specification describes a reason to exclude the relevant element, e.g., when the specification identifies disadvantages of using that element, or “distinguishes among” the element and alternatives to it, she maintains that the element must at least be disclosed in some form, given that “the hallmark of written description is disclosure.” Judge Moore does not dispute that the written description requirement can be satisfied if a skilled artisan would have understood that the specification inherently discloses the negative limitation, but she found no evidence on the record in this case that a skilled artisan would understand silence regarding a loading dose to “necessarily exclude” a loading dose.

In his dissent, Judge Linn does not so much disagree with Judge Moore’s characterization of the law of written description, as with the way the majority applied that law to the facts of this case. In particular, he complains that majority improperly required the priority application to disclose that the negative limitation in question was “necessarily excluded”.  He argues that it can be sufficient for the specification to merely provide a “reason to exclude” the negative claim limitation.

 

71 thoughts on “Federal Circuit Flips “Negative Claim Limitation” Decision after Change in Panel Composition

  1. 7

    Wow! for an EPO practitioner, this decision is a must-read, if only for its declaration that the “hallmark”of WD is “disclosure”. Who could possibly disagree with that?

    But if you agree with it, tell me, what is the definition of “disclosure” under the FItF AIA? To me, Judge Moore’s “adequate support” fails to rise to the level of a definition. Instead, it just begs the question: adequate for what? Good enough to convince a Fed Ct judge? Or what?

    The EPC has its definition and it is by now unassailable, sailing as it does under a flag they call their “Gold Standard”. Only that which is “directly and unambiguously derivable” by the skilled person from any given document can be siad to be “disclosed” by that document.

    A tight definition of “disclosure” is an artefact of any equitably-functioning “First to File” patent system that operates within the constraints of the Paris Convention, as the cases to come, in the courts of the USA, in the next 25 years will progressively reveal.

    In these columns, the EPO case law is criticised for its lack of any definition of “technical”. That’s because the borderline of eligibility is constantly evolving. But that’s no reason to baulk at a definition of “disclosure”. What is it then, may I ask, in the USA? How many years of patent cases have there been, in the USA, up to now, in which the outcome of the litigation turned on what was the “disclosure” of any given document?

    1. 7.1

      MaxDrei,

      You have it incorrect – it is not that EPO case law is any one thing – it is that YOU endlessly ploy your EPO Uber Alles schtick when it simply is NOT “all that.”

      1. 7.1.1

        Having now read the decision and the Linn dissent, I’m thinking that another definition is needed, namely, what does “implicit” mean, of a “disclosure” when looked at under the patent law of the USA. OK, Judge Linn demands deference to the fact-finding of the DC but come on, seriously, does anybody here agree with him that the DC was entitled to find that the description “would tell a person of skill that loading doses are excluded from the invention”?

        Or is it, anon, that under US law no such definitions are needed or useful for adjudication of patent claims by those courts charged with finding the facts?

        1. 7.1.1.1

          Don’t stop with the dissent in the current case – read O’Malley’s first majority position.

          She goes through in more detail why the District Court’s fact finding was given deference.

          1. 7.1.1.1.1

            Yes, OK. but (unless I have missed something) all that detail only goes to show that the DC fact-finding on the point was i) demolished in the later Decision and in any case ii) grotesquely credulous.

            1. 7.1.1.1.1.1

              but (unless I have missed something)

              Yes – you most definitely have missed something.

              The underlying point here of not only panel dependency, but how that panel may so abruptly flip on the exact same facts from below and the supposed more deferential view TO that fact evaluator who witnessed the cross examination of the experts below.

              O’Malley was no slouch, and tended to be FAR more likely to make calls objectively as opposed to a desired Ends.

              1. 7.1.1.1.1.1.1

                If we Can’t gather as a Jury before we decide in the Jury Room, then why was the decision leaked? Why can they kibitz. It’s obvious the decision was leaked by the Justices to cut by half the anger the day it came out again. Why do you even consider it was anyone else. You call yourselves lawyers? We can only hope the lifetime appt. for those that lie,even one that lied more than once removed. That poor woman that put herself out there now says shame on the Congress that knew she was telling the truth.

              2. 7.1.1.1.1.1.2

                The DC found that:

                The priority application does not explicitly mention loading doses, let alone the absence of a loading dose, but the district court nonetheless found implicit support for the negative claim limitation in two examples provided in the specification

                The notion that witness demeanour during x-exam on this point was determinative of the case is what troubles me. The DC went wrong because it failed to grasp a legal pont, namely what “implicit” connotes, in such circumstances.

                1. You also have parsed what O’Malley laid out in regards to what the DC found.

                  You are troubled by the fact-finders during cross making dispositive determinations?

                  Is this the same MaxDrei that LAUDS that point? Unglaublich.

                  This was NOT an error in legal understanding of what the term “implicit” connotes.

        2. 7.1.1.2

          Max, isn’t there a footnote in the majority opinion denying any case law support for such “implicit enablement”?

          1. 7.1.1.2.1

            Paul,

            The “battle of footnotes” on that point is very nuanced – and one of degree.

          2. 7.1.1.2.2

            Indeed. Thanks, Paul. Your observation (and that of anon) has prompted me to post to the other blog, in reply to Greg deLassus.

  2. 6

    Kudos to the CAFC and Judge Moore for correcting a very poorly reasoned earlier decision in this case.

  3. 5

    OT,

    But talking about “flipping” – Malcolm must be flipping out of his gourd with Supreme Court decisions of yesterday and today.

    (Patent angle: I had derided him for his gleeful (“Ends justify the Means” // whatever) take on how the Supreme Court treated patent rights and warned that this type of “logic” would disappear if that mechanism were to instead reach decisions that he did not like.

    1. 5.1

      I’m not “flipping out” because I’ve been prepared for this for years. It’s horrifying, particularly for women, who are now “officially” sub-citizens in this country which is plainly moving backwards at an accelerating rate.

      As a white guy, I suppose I could be celebrating. More power to me! As a member of a community which includes women and gay people, however, the rational choice at this point is to buy some guns, go to DC, and carry out a “2nd Amendment” solution to this problem a.s.a.p. It’s not like the people directly responsible for this are unknown to any of us and they’ve established that this is THEIR preferred means for effecting change.

      Sad day for America. Lawyers should be especially ashamed but that ship sailed a while back.

      1. 5.1.1

        The real sad thing —by far the worst thing happening in the USA–is that if MM wrote that from a perspective of an R about say immigration or vaccinations, then the FBI would be knocking on his door. But since it is a D position, he has nothing to worry about.

        1. 5.1.1.1

          Whats’s “sad” is comparing the wholesale subjugation of women, minorities, gays and non-Christians to the “tyranny” of needing to get a free vaccine during a pandemic that’s killing millions of people. But hey you gotta pick your battles, gramps.

          Oh look, there’s a woman going to a clinic! Quite possible she’s a criminal. Someone there will need to pay close attention.

          1. 5.1.1.1.1

            You should like a cult member.

            1. 5.1.1.1.1.1

              “like a cult member.”

              Compared to Trump supporters? No, not even close.
              Trump. Now there is a cult leader.

              1. 5.1.1.1.1.1.1

                The Hard Sprint Left is – without a doubt – far more dangerous than any group of Trump followers.

                This is quite clear from the history of authoritarianism over the last two hundred years.

                The numbers of devastation are not even close.

                Mind you I have never voted for Trump – but I am also that central stick figure in the meme in which the Far Left stick figure knocks down the Central stick figure because the Central stick figure said something the Far Left did not like, and then the Far Left whines that the Central is “Far Right.”

              2. 5.1.1.1.1.1.2

                Particularly, how can you tell the far left is a cult? They have beliefs that cannot be challenged.

                Reality–The R party has turned into the party of reason. The Ds are a neo-Marxist frightening group that are half a step away from committing mass murder against the populace like every other neo-Marxist group.

                Trump is a nut but what exactly do you think was so bad that he did? Putting aside the r acial stuff. Probably can’t name one thing as Trump’s policies were by and large good for Americans and based on sound economic principles.

                With that said I will be happy if Trump retires from politics.

                1. Trump’s major problem was that he relished the pigsty mud-slinging.

                  He thoroughly enjoyed tweaking the “Sprint Left” folks (including most all Main Stream Media).

                  As a pig, he enjoyed the slinging.

                  Easiest way to tell the difference between his persona and the policies put into action is to recall the debates.

                  The presidential ones were a pigsty.

                  The Vice-presidential one had mr. NO personality Pence absolutely wipe the floor with Ms. Cackle.

                2. “The Vice-presidential one had mr. NO personality Pence absolutely wipe the floor with Ms. Cackle.”

                  Was that the one where the fly landed on Pence’s hair? Flies are attracted to dead meat, and it landed on Pence.

                3. Prior to 2016, I would have agree that Fox is heavily biased and unreliable compared with the NY X.

                  Now that has flipped. If you list the facts of an issue, Fox is far more likely to fairly explain all the facts and then take their bias.

                  The NY Tx s reports only the facts that fit their narrative. So the NY Tx mispresents facts that support their narrative and don’t report any fact that doesn’t support their far left positions.

                4. Below is the kind of stuff that is just unbelievable. “Appears to move her elbow towards”?? Is this a parody of reality? Pelosi intentionally and obviously shoved a little girl with her elbow. It was a heinous act by Pelosi. Most of the media should be renamed the Democratic Party Propaganda Outlet.

                  Video on social media shows Pelosi gesturing and beckoning over the family pastor.

                  She then looks down at the young girl and appears to move her elbow towards her as the daughter moves away.

                  link to msn.com

                5. ipguy, I chuckled as that “dead meat” brings home my point: when dead meat destroys the “D” opponent — on the substantive matters — this indicates that take away the Trump mud enjoyment, the level of meaningful advances just blows away the desired Left narrative.

                6. Night Writer,

                  Read both
                  Trust neither
                  Always be practicing and developing one’s power of discernment.

                  (Comment is less “at” you and more “with” you)

                7. Anon what changed my view was just listing the relevant facts on a piece of paper and then reading articles and seeing which of the facts the information outlet reported.

                  If one does this, one will find that their “trust” news outlet is a propaganda outlet.

                8. “Prior to 2016, I would have agree that Fox is heavily biased and unreliable compared with the NY X.

                  Now that has flipped. If you list the facts of an issue, Fox is far more likely to fairly explain all the facts and then take their bias.

                  The NY Tx s reports only the facts that fit their narrative. So the NY Tx mispresents facts that support their narrative and don’t report any fact that doesn’t support their far left positions.”

                  All a part and parcel of media manipulations. Tbh, “news” just cries out for regulation these days. Not sure if you bros saw the youtube vid about “why the news used to not be so biased” where they go through why that was for a brief period of time in TV news at the dawn of the TV era. But that could be had again. And frankly I think it needs doing. Although it was done “voluntarily” back in the day, nowadays it needs regulating down to that. They can still make ideological manipulations as they please, they just can’t call it “the news”.

                9. “Trump’s major problem was that he relished the pigsty mud-slinging.”

                  That’s not a problem bro, that’s a strategy for getting fame, and it works.

                10. 6,

                  I agree with you that strategy for getting fame Works – for getting fame.

                  It is a lousy way to run the country though.

                  So it is a “despite himself” occurrence that the policy items that really did work – DID in fact work.

                  (This is me again playing that Central stick figure in that one meme)

                11. “So it is a “despite himself” occurrence that the policy items that really did work – DID in fact work.

                  (This is me again playing that Central stick figure in that one meme)”

                  I hear what you’re talking about I believe, but I have to disagree. His overall policy doings were so many and vast that his wallowing in political mud just doesn’t seem likely to have affected them overall, and their efficacy is statistically nigh impossible to have been just a despite himself sort of thing. His policy doings were for serious, his political/entertainment theatre is another thing entirely.

                  In any event, I was just reading the decision from the supremes, and it is near infuriating to read in some places. Specifically not even just because of the leftist logic and all (that’s expected), but just because it seems to be entirely disconnected from the reality of the vast majority of women’s actual lives and the lion’s share of the effect abortion has on their and their social etc. existence. It’s like it is written for the upper crust of society women’s lives and/or written for a population body of women that existed in the 70’s/80’s. Today’s woman is not merely using abortion to leik tots have big time dignity and respect and big time political input into the system or whatever. Today’s woman is using abortion to uphold a se xual market that makes 80% of black babies be born to 18% of black men. Today’s woman is using abortion to uphold a se xual market where they chase whomever they’re attracted to until they’re 30 and then “decidelol” to settle down. Today’s woman is using abortion to uphold a se xual market where they create a giganto population of single moms/baby mommas. And that’s all ignoring the reasons that women state in official “lolstudies” of reasons why women get abortions (cant afford it etc., obv. due to not picking a “good dad” as partner). Not even sure how this is entirely going without notice by the supremes, cloistered tho they are. They keep talking about all these grand abstract things that women supposedly are using abortion for, and additionally acting like all the women having abortions are still newly/recently married 1950’s housewives. Ala maintaining their “muh liberty”, as in “economic, social, political, and legal aspects” of their lives, conspicuously omitting the no. 1 thing it’s actually used for irl, usurping a se xual/reproductive control that was never available to the everyMAN in all of human history. And they just conspicuously omit the actual irl reasons to focus on these nigh fantasy considerations. I mean, I obviously don’t mind if they take those fantasy considerations into consideration, as yes, they are minor considerations, but je sus, you’ve got to at least address the ten gazillion ton elephant in the room by this late of a date. Do we have to wait until 2100 for the government to acknowledge real life?

          2. 5.1.1.1.2

            wholesale subjugation of women, minorities, gays and non-Christians

            Come back to reality soon.

            (One thing about Malcolm – no Motte and Bailey for him — he’s full blown Hard Sprint Left).

          3. 5.1.1.1.3

            “subjugation”

            For real? You’ve got to explain to us how this is “subjugation”. Come on bro.

            “Quite possible she’s a criminal. ”

            More likely its the doc.

            “then the FBI would be knocking on his door. ”

            Very true NWPA.

        2. 5.1.1.2

          That was a very irresponsible post by MM, threatening violence is not an answer to anything.

          1. 5.1.1.2.1

            That’s just Malcolm being Malcolm.

            But Night Writer’s point may get lost in the shuffle, as Malcolm’s proclivity for “Rules for Thee, Not Me” (especially in regards to threats — or actual — v10lence), has been played out many times now between what leaders of the Far Liberal Left “D” folk do.

            As Dr. James Lindsay identifies: this is the iron rule of Woke projection.

            1. 5.1.1.2.1.1

              Your nutcases, Dennis and Jason. Reap the whirlwind.

              1. 5.1.1.2.1.1.1

                Lol – there you go again: the Woke iron rule of projection.

              2. 5.1.1.2.1.1.2

                Donald Trump calling people nut jobs:

                link to youtu.be

      2. 5.1.2

        Your “being prepared” absolutely misses the point that when you were celebrating the Court’s actions (because they reached Ends you liked), that the mechanism doing so would S M A C K you when that same Court reached Ends you did not like.

        The rest of your off-base screed is equally off-base.

        1. 5.1.2.1

          anon, it really is true that the reason this is happening is the Court’s composition in the 1960’s.

          The issue back then was pretty clear. Either make up some nonsense and let the Scotus take care of it or amend the Constitution. As was the wont back in the 1960’s the easy way out was taken.

          I hope the Constitution is amended to permit early term abortions so the whole thing is settled as far as laws and Scotus go. The amount of energy expended on this issue is ridiculous. We just need an amendment that will give LGBQT+ people equal rights (and women) and permit abortions and get on with life.

          1. 5.1.2.1.1

            I am not fine with that “making up some nonsense” — no matter what that nonsense is.

            The Ends do not justify the Means.

            Period.

            Even for noble ends.

            1. 5.1.2.1.1.1

              Where this gets to with patents I think is interesting as Oil States was making up nonsense. Alice/Mayo was making up nonsense.

              The only problem is that Thomas was the one making up the nonsense so he isn’t going to be riding in and helping us out with patents.

              But I think Roe v. Wade illustrates just how much judicial activism plays in these decisions. The Scotus was told that patents needed to go because the big international corporations didn’t like them anymore. And the Scotus generated nonsense to cripple the patent system.

              Let this be a lesson to you in predictions for outcomes. These people often just generate nonsense to get the result they want.

              1. 5.1.2.1.1.1.1

                I hear you.

                Sadly.

          2. 5.1.2.1.2

            “As was the wont back in the 1960’s the easy way out was taken.” Amen to that. Though arguably the constitution is a bit too hard to change. Scalia did a whole paper on how hard it was, and it’s basically impossible for anything controversial. Near impossible for a nothingburger amendment.

            1. 5.1.2.1.2.1

              It was Designed to be so, 6.

              Those that started this Republic were well aware of the “Tyranny of the Majority.”

              1. 5.1.2.1.2.1.1

                “It was Designed to be so, 6.”

                It actually wasn’t designed to be as hard as it is now. That was scalia’s point in his paper/book. It was 100% designed to be realistically modifiable by the legislature. Which you will note it was, quite a few times in the first hundred years. Nowadays it isn’t. We will be going a hundred years without more than a nothingburger amendment here shortly, setting aside repeal of prohibition. Notice how much substance gets put in during the first 80 years.

                link to britannica.com

                1. Seeing as the Bill of Rights was an immediate adjunct to the Constitution’s adoption itself, your link actually makes my point and wrecks yours.

                  So I suppose I should thank you for your inadvertent confirmation of my statement.

                2. “your link actually makes my point and wrecks yours.”

                  11 or so vs. 0 as a score (6th-19th(ish) lets be generous) makes your point and wrecks mine? Bruh, learn to count.

                3. 6,

                  Learn to count?

                  How about you learn to reason?

                  You don’t get to count the first ten as they were contemporaneous. You then turn and have, what like TWO until the next THREE due to the Civil War.

                  And the first ten would be counted as a single instance because they were enacted as a group.

                  Then compare the 6 total instances (and I am being generous to you) with the number of other laws passed in that time span.

                  I simply have the far superior point.

                4. “Then compare the 6 total instances (and I am being generous to you) with the number of other laws passed in that time span.”

                  Lol so you’re comparing against the number of laws passed? Lelz. tar ded.

                5. Not at all — what are you comparing to (reminding you of the direct point of the initial comment does not exist in a vacuum)?

                6. “Not at all — what are you comparing to”

                  Other nations with similar provisions, or a slightly more permissive scheme for just this nation derp derp. Same thing they get compared to in the popular literature on the subject. Like to like(ish).

                7. Other nations with similar provisions, or a slightly more permissive scheme for just this nation derp derp.

                  No other nation has our scheme – nor our history.

                  Any attempt to employ “likish” then would be in error.

                  What exactly is this “slightly more permissive scheme” that you are concocting, and how in the world is it related to what those starting this country set out to do?

                  You seem to have an abysmal lack of understanding and appreciation for the baseline. You cannot grow or evolve UNLESS you understand that baseline. Leastwise not in a way that holds true to the underlying (eternal) principles so set forth.

                8. “No other nation has our scheme – nor our history.”

                  Yes, no kidding, that’s why I’m saying that it wasn’t meant to be THAT restrictive. The same thing as others in this little sub field of discussion say ad infinitum. Read the people that wrote the damn procedure to amend’s writings and see. Making it merely “not ez” doesn’t mean “not usable for a hundred years+” or “impossible” as it is today. They intended it to be more in line with other systems that are roughly “around it” (other democracyish systems in place at the time), not the system that it turned out to be in reality for 200+ years. That’s kind of the point. They explicitly say they want it to be usable, just not ez.

                  “What exactly is this “slightly more permissive scheme” that you are concocting, and how in the world is it related to what those starting this country set out to do?”

                  That would be the actual scheme, except with it turning out, in practice, to be actually usable by real people irl over a hundred years time period for more than a nothing burger. Which it has shown itself to not be.

                9. that’s why I’m saying that it wasn’t meant to be THAT restrictive.

                  Your statement is a logical non-sequitur.

                  It was meant to be every bit as restrictive as it is.

                  You AGAIN (in error) state that they somehow wanted something else, something like someone else had — and there is absolutely zero basis for this. IF they wanted something else, they would have put in place something else. They wanted an ability to change, but most definitely wanted ANY changes to the Constitution itself to have to undergo a very rigorous process, as they did NOT want the fount of law to be able to be changed as easy as any subsequent law was to make.

                  Your spouting on to other effects informs me that you do not understand how law works. Note even on a basic structural level.

      3. 5.1.3

        “who are now “officially” sub-citizens in this country which is plainly moving backwards at an accelerating rate”

        “If I can’t kill my baby I’m a sub-citizen!”

        “As a white guy, I suppose I could be celebrating. More power to me!”

        “Women not being able to off their kids gives power to the white mane, who is le ev il”

        “As a member of a community which includes women and gay people, however, the rational choice at this point is to buy some guns, go to DC, and carry out a “2nd Amendment” solution to this problem a.s.a.p.”

        “If women and gays can’t have live a state subsidized life me and the boys will have to go shoot up the capital”

        “It’s not like the people directly responsible for this are unknown to any of us and they’ve established that this is THEIR preferred means for effecting change.”

        “The ev il ones I will not name are using this as their means for effecting change”

        -MM 2022

        1. 5.1.3.1

          Sotomayor has a background in Sprint Hard Left Critical Race Theory (in the flavor of gender) — and it was a showing in the Dobbs dissent.

          What you mouth here in jest, 6, she takes in full earnest.

      4. 5.1.4

        I notice you mention white men. You mention women. You mention gay people.

        Conspicuously absent in your call for insurrection is the life in the womb.

        1. 5.1.4.1

          Turbo — as typical for Liberal Left, inconvenient facts need not be attended to.

          Consider as well that those screaming for “bodily autonomy” were very often the same ones screaming for mandatory (unproven for long term effects) emergency-granted vaccines – and other bodily intrusive measures – to be forced (noting as well that the very definition of “vaccine” was 1984’d during the process).

          Now mind you, I am all for vaccines and myself CHOSE to be vaccinated, but the hypocrisy of pictures of protestors in umbrage, holding signs ‘to keep the government out of our bodies and our choices for our bodies’ – while dutifully wearing face diapers – did not go unnoticed.

          ALL of this is nothing more than desired Ends by any Means.

        2. 5.1.4.2

          Note as well how Biden’s own words (aimed at express rights IN the Bill of Rights [that is, 2A]) – that those rights were never meant to be absolute — has entirely disappeared in the Dobbs fallout.

        3. 5.1.4.3

          “Conspicuously absent in your call for insurrection is the life in the womb.”

          I think they mentioned the life in the womb, they refer to the life in the womb as “the oppression” or “the subjugation”.

          Think of it like this: baby=oppression=subjugation.

          1. 5.1.4.3.1

            You are correct.

            It really does not take a biologist to see the PC in a statement like “Women and other people who can get pregnant” — which I have seen in memes floated by some of my angst-ridden attorney friends.

            Which also leads to a “intersectionalist” problem for the Left, who want to scream about “women being second class citizens” – their push for “and other” opens the door for NON-women to have ground on this issue (0h N0es!!)

            Now where is my Bill Gates pregnant man emoji….

  4. 4

    Granting reconsideration of any Fed. Cir. opinion, as here, is very rare, much less with a different judge on the panel, so unlikely to occur again.

    1. 4.1

      Thank you for trying to dismiss the issue here.

      That being said, the issue is still here.

  5. 3

    Read the decision for yourself, starting from the last paragraph of p. 7 through page 10 in particular.

    1. 3.1

      I think one does need to read the opinion.

  6. 2

    Sadly, but Ha-Ha, who ever thought that listing judges on decisions was not necessary?

  7. 1

    Judge Linn, the only sane judge besides Newman on the CAFC. Too bad he is semi-retired.

    1. 1.1

      +1

      Let’s hope that a pro-patent President gets elected and that we get some pro-patent heavy weights on the CAFC.

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