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'Creating a market' in the patentable bits (and implicitly expanding the scope of patent protection) hurts the process of creating new combinations, adding both uncertainty and expense".
Second, the 1970 Act clearly indicates that Congress has included bacteria within the focus of its legislative concern, but not within the scope of patent protection.
On the contrary, he said, the court seems interested in reinforcing the broad scope of patent law by removing some of the limits set on math algorithms and natural phenomena.
It argues that although it is a living organism, which would normally be outside the scope of patent law, it is also a true artefact, not just the product of selective breeding.
The outcome of this case will clarify the exhaustion doctrine generally and will help define the scope of patent holders' rights, including their ability to collect royalties from and sue downstream users of their patents.
Three arguments are advanced for the proposition that the claimed invention is outside the scope of patent law: (1) it is not tied to a machine and does not transform an article; (2) it involves a method of conducting business; and (3) it is merely an abstract idea.
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Some of these policies include: (1) reinforcing the research exemption for academic researchers, (2) raising the "bar" for the criteria of patentability, (3) restricting the scope of patents, (4) disclosing conflicts of interest related to DNA patents, (5) sharing the economic benefits of patenting with patients, and (6) providing insurance coverage for some types of genetic tests.
It is true that the doctrine of equivalents renders the scope of patents less certain.
"But the long-term prospect restricts the scope of patents because it presumes the appeals court decision is what is in effect, and gives some inventors a chance to prove otherwise".
"Of course that can't be neutral in terms of quality," says Mr Guellec.In recent years, the scope of patents has broadened to encompass new technologies, as well as software, and in some instances business methods.
Significantly, the agreement says that it covers "smartphones, tablets and televisions", suggesting Microsoft has now broadened the scope of patents that it is using to pursue Android – and now Chrome OS too – to include GoogleTV, which has so far failed to take off significantly.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com