, Captured Economy

Brief of Amici Curiae Electronic Frontier Foundation and R Street Institute in support of petitioner, Ariosa Diagnostics, Inc. v. Illumina, Inc.

From Captured Economy:

The Federal Circuit has departed from the fundamental principle of the patent system: an invention must be new to be patentable. Instead, it held that second comers may receive the powerful rights of a U.S. patent, even for ideas that someone else previously described in a published patent application. That result contravenes this longstanding principle and undermines the patent system’s goal of promoting innovation, instead swinging the door open to applicants who wish to patent old ideas. The Federal Circuit’s decision to impose this new requirement is an erroneous departure from this Court’s precedents, Congress’s intent, and the Constitution’s mandate that the patent power promote rather than inhibit innovation in this country.
This departure from well-settled law must not be taken lightly. Unless reversed, Ariosa will winnow incentives and opportunities for innovation by allowing patents on old and known ideas to continue impeding the economically fruitful endeavors of others. This will not only insulate weak patents from meaningful post-issuance review, but also encourage future applicants to claim as their own advances that others already made, leading the Patent Office to issue patents that impede rather than promote technological progress. It further introduces problematic instabilities into the mechanics of the Patent Act and into the administration of the Patent Office as an agency. These serious consequences necessitate this Court’s review.

Charles Duan, Daniel K. Nazer, and Alexandra H. Moss

Electronic Frontier Foundation

August 24, 2018

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