You may recall that I wrote back in September of last year on the case of Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc. See CAFC Says “Patented Invention” Does Not Include Methods . In Cardiac Pacemakers, all but one member of the en banc Federal Circuit ruled that 35 U.S.C. § 271(f) doesn’t apply to patented processes. Judge Newman was the sole dissenting judge.
I commented at the end that article that: “It remains to be seen whether the loser in Cardiac Pacemakers will take their cue from Newman’s dissenting opinion, and petition for certiorari to the Supreme Court.” Well, the loser did petition for cert to the Supreme Court, and the Supreme Court has now spoken. Unfortunately for the loser (and not a surprise to me), the Supreme Court spoke negatively on January 11, refusing to consider the Federal Circuit’s en banc ruling in Cardiac Pacemakers.
So ends this sad saga on that messy statute called 35 U.S.C. § 271(f). May be it’s time for Congress to finally put a fork in this “cooked” statute.
*© 2010 Eric W. Guttag.
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