In denying the petition for rehearing
en banc the majority of the Federal Circuit abdicated its
responsibility to define the limits of the Supreme Court's
Mayo decision. Judge Dyk on the 25th
birthday of the Federal Circuit noted that:
Frequently, the Supreme Court in patent cases articulates a
general principle and leaves it to our court to both administer the
rule and apply it to the individual case.[1]
As noted by Judge Dyk, the Supreme Court is a policy-oriented
court which requires:
In other words, the Supreme Court requires a different approach
than has characterized patent litigation historically, and
litigants can only ignore this at their own peril. The problem, in
general, is that the academy goes too far in urging a reshaping of
the patent law to respond to perceived policy, while the bar does
not go far enough. This leaves the Supreme Court and the lower
federal courts with little assistance in sorting out the relevant
policy concerns.[2]
