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« Court Report | Main | Supreme Court Denies Amgen Certiorari Petition to Reverse Cybor »

May 13, 2007


I just came across this... and for months, I've been thinking along the same line. However, it seems that the proposed legislation is getting rid of 103(b). I've asked many about this. Some say it's an oversight, others say it is not necessary anymore because of Brouwer and Ochiai. My questions are (1) is the proposed legislation deleting 103(b) and (2) is it really not necessary today?

Dear Amoeba:

I am not aware of any efforts to overturn this aspect of the proposed patent law provisions, but I suppose just about anything may be fair game.

Brouwer and Ochiai have traditionally been cited as making 103(b) less relevant (as well as extending the provisions of the statute to subject matter not encompassed within the language of the statute).

In view of the way the courts are going with this, however, I think the statute prevents the PTO, the CAFC and the USSC from applying the obviousness "flavor of the week" to this subject matter, and that's why I think it's still necessary.

Thanks for the post.

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