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Few litigants want to raise this issue before the Federal Circuit, since State Street seemed to state so strongly that anything is patentable as long as it's useful.
Sunstein notes that even European countries, like SAP, own patents in the U.S. The European Patent Convention specifically excludes software from patent protection, stating, "Software is not patentable, as such," says Sunstein.
Even if bioprinting did not pass the gatekeeper of § 101, bioprinting can still be patentable as process claims rather than products claims.
For instance, if it chooses to decide that natural genes are patentable, as a US appeals court just did, no one could reverse that decision except perhaps the European Court of Justice (ECJ), the highest court in Europe.
Judge Patti B. Saris cited that principle in the lower-court State Bank decision, noting some other key precedents: "Mental processes, and abstract intellectual concepts, are not patentable, as they are the basic tools of scientific and technological work".
"Phenomena of nature, though just discovered, mental processes, and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work". Gottschalk v. Benson, 409 U.S. 63, 67, 93 S.Ct.
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"Anything that is really good and patentable is as simple as can be," he says.
This is a patentable invention as there is novelty and utility, but usually it is not patented at this point as a stronger case can be made if there is in vivo data.
Food is not a "patentable drug", as Sheila Dillon observed on her radio programme about Paula Wolfert.
GSK has been working on bioelectronic medicines since 2012 in a push to develop new patentable treatments as its Advair respiratory treatment faces competition from generic versions.
Finally, some subject matter may not be patentable, such as scientific principles and abstract theorems - e.g., the laws of physics.
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