EFF and R Street Institute file Amicus Brief in Ariosa v. Illumina
In an amicus brief filed by Charles Duan of the R Street Institute, and Daniel K. Nazer and Alex Moss of EFF, the authors encourage the Supreme Court to grant a writ of certiorari and overturn the Federal Circuit’s decision. Not only does this decision undermine the purpose of the patent system, but the exception it carves out goes against both current law and legal precedent. As they explain:
The plain meaning of 35 U.S.C. § 102(e)2 renders any description in a published application or granted patent effective as prior art as of the date of the earliest application from which it claims priority. Furthermore, Congress’s intent as reflected in the legislative history of the 1952 Patent Act as well as the 1999 amendments to the Act make apparent that Congress was codifying this Court’s case law, not altering it …
Under the 1952 Act, an applicant may receive no patent on an invention “described in a patent granted on an application for patent by another filed in the United States before the invention thereof by the applicant for patent” — that is, a prior-filed application that matures to a granted patent …
Similarly, when in 1999 Congress provided for the default publication of patent applications within 18 months of filing, Congress amended § 102(e) to make clear that such publications would qualify as prior art under [Alexander Milburn Co. v. Davis-Bournonville Co.] just as granted patents had.
