Misleading argument in Cuozzo suggests district courts use BRI

scotus-supreme-court-300-1The United States Supreme Court will hear oral arguments in Cuozzo Speed Technologies v. Lee on April 25, 2016. The case will present the Supreme Court with the first opportunity to consider the controversial new administrative trial proceedings created by the America Invents Act (AIA). More specifically, the Supreme Court will consider whether institution decisions are forever insulated from judicial review and whether the PTAB applies the proper claim construction standard. See Supreme Court Accepts Cuozzo.

Recently there were a number of amicus briefs filed in support of the Respondent, USPTO Director Michelle Lee. One of the briefs caught my attention, primarily because it makes one statement that seems clearly false on its face, and other statements that seem quite misleading. The brief I have issues with was filed on behalf of Unified Patents.


District Courts and BRI

In the Introduction to the Unified Patents’ brief the following statement is made: “The phrase ‘broadest reasonable interpretation’ describes the same procedure applied in both the PTO and by the courts.” That statement is unequivocally incorrect. Federal district courts do not apply the broadest reasonable interpretation (BRI) of an issued claim when performing a claim construction in patent litigation. Quite the opposite, district courts narrowly interpret claims in an attempt to find a true and correct construction of the claims. The law is unequivocally clear: district courts do not apply the broadest reasonable interpretation standard.

It is so axiomatic that district courts use a different standard than does the USPTO when interpreting claims it is almost difficult to figure out where to begin to unravel this falsehood.

Perhaps the best evidence of the acknowledgement of a different standard between the way the Patent Office and district courts interprets claims is guidance issued from the Office itself. In the Manual of Patent Examining Procedures (MPEP 2111) the Office explains to examiners that they are to use a different standard, saying:

Patented claims are not given the broadest reasonable interpretation during court proceedings involving infringement and validity, and can be interpreted based on a fully developed prosecution record. In contrast, an examiner must construe claim terms in the broadest reasonable manner during prosecution as is reasonably allowed in an effort to establish a clear record of what applicant intends to claim. Thus, the Office does not interpret claims in the same manner as the courts.

While not binding on the courts, this statement of Office policy suggests that even the Patent Office would disagree with this proposition offered up by Unified Patents.

Applying the broadest reasonable interpretation of patent claims during the patent examination process makes sense given the role the patent examiner plays in determining whether to issue a patent in the first place. As the patent examiner considers the novelty and obviousness of the patent claims offered by the applicant the BRI standard informs their decision making from an analytic standpoint. While deciding whether the claim would capture the prior art as written the examiner gives the patent claim the most expansive reading consistent with the disclosure of the invention in the patent application. The goal of BRI is to see whether the claim overlaps with the prior art and must be rejected when it is stretched to its logical extreme.

This broadest reasonable interpretation of the claims is made as the claims would be understood by one of ordinary skill in the art. This was explained in Phillips v. AWH Corp., 415 F.3d 1303, 1316 (Fed. Cir. 2005) as follows:

The Patent and Trademark Office (“PTO”) determines the scope of claims in patent applications not solely on the basis of the claim language, but upon giving claims their broadest reasonable construction “in light of the specification as it would be interpreted by one of ordinary skill in the art.”? In re Am. Acad. of Sci. Tech. Ctr., 367 F.3d 1359, 1364 (Fed.Cir.2004). ?Indeed, the rules of the PTO require that application claims must “conform to the invention as set forth in the remainder of the specification and the terms and phrases used in the claims must find clear support or antecedent basis in the description so that the meaning of the terms in the claims may be ascertainable by reference to the description.” 37 C.F.R. §?1.75(d)(1). ? It is therefore entirely appropriate for a court, when conducting claim construction, to rely heavily on the written description for guidance as to the meaning of the claims.

This is the only passage in Phillips that uses the term “broadest reasonable construction.” Clearly, the Federal Circuit is discussing how the Patent Office interprets claims and concludes that if the Patent Office is going to rely on the specification when construing claims it seems appropriate for a reviewing court to similarly rely on the specification as well. It does not say that the court should employ the broadest reasonable construction.

In fact, district courts do not employ the broadest reasonable interpretation of claims, which the Federal Circuit’s recent precedential decision in PPC Broadband, Inc. v. Corning Optical Communications (Feb. 22, 2016) explained. The decision dealt with a review of several decisions from the Patent Trial and Appeal Board (PTAB) from related inter partes review (IPR) proceedings. Writing for the unanimous panel Judge Moore explained: “claim construction in IPRs is not governed by Phillips. Under Cuozzo, claims are given their broadest reasonable interpretation consistent with the specification, not necessarily the correct construction under the framework laid out in Phillips.” Judge Moore would go on to write that the construction of the critical claim term by the PTAB was “not the correct construction under Phillips, it is the broadest reasonable interpretation…”

Indeed, it is telling that Judge Moore (joined by Judges O’Malley and Wallach) would characterize the Phillips standard as “the correct construction” while directly contrasting it with the broadest reasonable interpretation, which is the way the Patent Office interprets claims.

It is also critically important to recognize that Phillips specifically acknowledged and accepted the principle that a court construing patent claims should construe the claims, if possible, to preserve validity of the claims. While the maxim that a reviewing court should, where possible, construe a claim to preserve validity is only applicable in limited scenarios, the maxim remains good law. There are dozens of cases that have applied this maxim over the last generation, and the Phillips court continued to recognize its existence.

Simply put, a patent examiner applying the BRI standard cannot and does not ever interpret claims being reviewed in order to preserve validity where possible. Similarly, when the PTAB applies the same BRI standard they are not seeking to preserve patentability either. Preserving patentability is not the purpose of the BRI standard and exactly why it is the inappropriate standard once a patent claim has been issued and is no longer subject to examination.

As the Federal Circuit has previously explained, “[i]t would be inconsistent with the role assigned to the PTO in issuing a patent to require it to interpret claims in the same manner as judges who, post-issuance, operate under the assumption the patent is valid.” In re Morris, 127 F.3d 1048, 1054 (Fed. Cir. 1997). So the question the Supreme Court must answer is whether an Administrative Judge who refuses to allow amendments to the application must presume the patent is valid and apply the Phillips standard instead of the BRI standard that is used during prosecution of an application.



Presumption of Validity

Once issued patents are statutorily presumed valid. See 35 U.S.C. 282. While the PTAB refuses to presume issued patents are valid, federal district courts must presume issued patents are valid. Furthermore, in order for a patent claim to be successfully challenged as being invalid the defendant must come forth with clear and convincing evidence that the claim is invalid. i4i v. Microsoft.

On the issue of the presumption of validity, the Unified Patents’ brief argues that the presumption of validity owed to an issued patent does not apply to the Patent Office because the Patent Office does not owe any deference to itself. Their brief explains:

Differences between the courts and the PTO in claim interpretation may be attributable to factors other than the claim construction standard. One of these factors is the statutory presumption of validity, which is a court’s expression of “the deference that is due to a qualified government agency presumed to have properly done its job which includes [personnel] who are assumed to have some expertise in interpreting the references and to be familiar from their work with the level of skill in the art and whose duty it is to issue only valid patents ” American Hoist and Derrick at 1359. In short, a court will defer to agency expertise—the technical expertise used by the PTO in review proceedings, initial examination, and claim construction and the nature of PTO examiners, staff, and PTAB judges District court judges must deal with a broad universe of cases, and are not required to have the engineering or scientific background required of PTO examiners or PTAB judges, whose focus is much narrower In contrast, the PTAB determines technical truth guided by its own technical and scientific training, with the input of the parties Absent deference to the expertise of the agency, there is no presumption of validity.

(footnotes omitted).

There are numerous problems with this paragraph.

First, it is curious that American Hoist and Derrick would be used to suggest that the statutory presumption of validity is tied in some way to deference due to the qualified agency. That is not what American Hoist and Derrick says. In American Hoist and Derrick, Judge Rich wrote:

The two sentences of the original § 282, which, though added to, have not been changed, amount in substance to different statements of the same thing: the burden is on the attacker. And, as this court has been saying in other cases, that burden never shifts. The only question to be decided is whether the attacker is successful. When no prior art other than that which was considered by the PTO examiner is relied on by the attacker, he has the added burden of overcoming the deference that is due to a qualified government agency presumed to have properly done its job, which includes one or more examiners who are assumed to have some expertise in interpreting the references and to be familiar from their work with the level of skill in the art and whose duty it is to issue only valid patents.

There is no statement here that says that the presumption of validity exists only because of deference to the expertise of the agency. What Judge Rich is saying is that patents are presumed valid, the burden never shifts to the patentee to prove anything because patents are presumed valid, and if all the challenger is going to do is cite the same prior art already considered by the patent examiner they are going to have an even more difficult time of overcoming the presumption of validity. American Hoist and Derrick clearly does not stand for the proposition for which it was asserted in the Unified Patent brief.

Second, in American Hoist and Derrick, Judge Rich explains that the statutory presumption of validity codified into the 1952 Patent Act stemmed not from any deference to the Patent Office, but rather from “the basic proposition that a government agency such as the then Patent Office was presumed to do it job.”

This is an important point. There is a subtle distinction between giving the Patent Office deference and assuming that they have done their job properly the first time. Unified Patents argues that the Patent Office is not required to give issued patents a presumption of validity because they issued the patents in the first place and the presumption only exists because courts must give patent examiners deference – a deference that the PTAB must seemingly not provide to examiners. But the presumption is not based on deference to the agency or letting the agency do whatever the agency wants with a property right. Instead, as Judge Rich explained, the presumption was based on the sensible belief that patent examiners did their job properly. If it is reasonable for district courts to believe that patent examiners did their job properly it can and should be equally believable to the PTAB.

Finally, the inconvenient truth presented by the presumption of validity is that it is very simple, straightforward and easy to understand. 35 U.S.C. 282(a) in its entirety says:

A patent shall be presumed valid. Each claim of a patent (whether in independent, dependent, or multiple dependent form) shall be presumed valid independently of the validity of other claims; dependent or multiple dependent claims shall be presumed valid even though dependent upon an invalid claim. The burden of establishing invalidity of a patent or any claim thereof shall rest on the party asserting such invalidity.

Nowhere does the statute say that this presumption of validity attaches only to patents being reviewed in federal courts. Instead, the law simply says, “a patent shall be presumed valid.” It is also worth specifically pointing out that the law does not say that a patent shall be presumed valid unless the Patent Office wants to take a second look at the patent, or a petition challenging the patent is filed with the PTAB. Patents are supposed to be presumed valid, period.

Congress created the PTAB in the AIA, when it also created inter partes review (IPR), post-grant review (PGR) and covered business method (CBM) review. Many changes were made to the statute in the AIA, including a fundamental shift in the definition of what constitutes prior art. After at least 150 years of a first to invent system, the AIA also ushered in a first to file system. The changes to patent law brought into being by the AIA were both numerous and monumental. Yet, Congress did not change the presumption of validity, instead choosing to continue to say that an issued patent shall be presumed valid. Had Congress wanted the PTAB to ignore the presumption of validity, as they do now, it would have been very easy for language to be drafted and inserted into the bill to create a bifurcated presumption of validity. No such bifurcation in the presumption of validity exists.


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Join the Discussion

28 comments so far.

  • [Avatar for Anon]
    April 18, 2016 07:33 pm

    Mr. Heller, your views on the single paragraph to multi-paragraph/multi-section law that happened in 1952 remains vastly underwhelming.

  • [Avatar for Edward Heller]
    Edward Heller
    April 18, 2016 03:43 pm

    Anon, there was a reason for dividing 101 into subject matter and patentability. But that had nothing to do with the contents of 101.

    As to whether 103 had anything to do with the old 101, it did. It had to do with “novelty” as discussed extensively by Federico. Rich argued otherwise, but he and Federico did not see eye-to-eye on at issue, now did day?

  • [Avatar for Anon]
    April 15, 2016 08:10 pm

    In order to let the people judge, Mr. Heller, you should properly include the congressional record, the notes to the passed laws (including 103), the commentary of those experts involved with the Act (notably the writings of Federico and Rich), and then understand the entire historical perspective.

    There is – and was – far more to the picture than you seem willing to acknowledge.

  • [Avatar for Edward Heller]
    Edward Heller
    April 15, 2016 03:55 pm

    Just to let people judge,

    1793: “[W]hen any person or persons, being a citizen or citizens of the United States, shall allege
    that he or they have invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used before the application, and shall present a petition to the Secretary of State, signifying a desire of obtaining an exclusive property in the same, and praying that a patent may be granted therefor, it shall and may be lawful for the said Secretary of State to cause letters-patent to be made out in the name of the United States ….”

  • [Avatar for Anon]
    April 15, 2016 03:10 pm

    The Act of 1952 is not a verbatim treatment of the single paragraph that was expanded into the multiple and different sections of 101/102/103/112.

    It is clear legal error to pretend otherwise – just as it is clear legal error to pretend that the Act of 1952 was a mere codification.

    Your attempt here is to paint a picture that is just not accurate and is thus rejected in its totality.

  • [Avatar for Edward Heller]
    Edward Heller
    April 15, 2016 02:56 pm

    anon, when Congress repeats the words that Jefferson used, verbatim, just how is Congress asserting that it is intending to overrule Jefferson?

  • [Avatar for Anon]
    April 13, 2016 08:22 pm

    Mr. Heller,

    May I kindly remind you that the law as Congress wrote in 1952 supplants the words of Jefferson.

    And ALL of that such entails – no matter how much you may not like it.

  • [Avatar for Night Writer]
    Night Writer
    April 13, 2016 07:01 pm

    Software is not math anymore than a chair is math. And, sheesh (!), what is with you Luddites that you try to pin modern technology on technology from hundreds of years ago. Could Thomas Jefferson have imagined machines that process information (which are improved machines and processes and components).

    Witch thinker.

  • [Avatar for Edward Heller]
    Edward Heller
    April 13, 2016 04:06 pm

    Night, I have said before that Benson is as clear as mud, almost as bad as Bilski. Given its lack of clarity, it is equally hard to disavow as to follow. Just what did it hold?

    I still prefer to look at the statute, written the way it is today by Thomas Jefferson. I think he got it right. New or improved machines, manufactures, compositions and Arts (now processes) are the subject of patents. Is math one of these? Clearly not.

  • [Avatar for Pat N. Trole]
    Pat N. Trole
    April 13, 2016 10:51 am

    The content in United Patents’ brief makes perfect sense. Their members include Google, JP Morgan, and most of the biggest automakers – huge companies with huge budgets that benefit from weak patents. Of course they don’t want a presumption of validity, despite the fact that each of these companies has many patents.

  • [Avatar for Night Writer]
    Night Writer
    April 12, 2016 08:31 pm

    >> Anybody who supports BRI is not to be trusted. Take note who they are.

    I agree and feel the same way about people that don’t disavow Benson.

  • [Avatar for Night Writer]
    Night Writer
    April 12, 2016 04:45 pm

    The thing that strikes me about BRI is that the PTO is using a broader claim scope then the patentee could assert in federal court. So, the logic of using the IPR to deal with patents that shouldn’t have been issued doesn’t hold water. The logic should be that the patentee may assert the claims against me, so I am using the IPR. But, BRI typically includes scope that a patentee can’t assert. =><=

  • [Avatar for Edward Heller]
    Edward Heller
    April 12, 2016 04:00 pm

    Gene, a claim, not issued, must be examined for clarity as well as novelty. That is why BRI exists — to take ambiguity out of the claims before they issue.

    After a claim has issued, its validity can be attacked: if the claim is unclear, the claim is invalid. One does not reach novelty. If the claim is not unclear, the claim is reviewed for novelty (102/103).

    Now we here the PTO can apply to BRI to claims in issued patents because of the “opportunity to amend.” This is equivalent to permitting the PTO to reexamine issued claims for ambiguity forcing the patent owner’s to make clarifying amendments. The problem of course is that any amendment may and probably will invoke intervening rights. That is wrong because it is harmful to the patent owner, taking property without true due process.

    The whole “opportunity to amend” argument is a red herring. It is used by the PTO to clarify claims in reexaminations against the law and against the constitution despite the open cooperation of the in the tank Federal Circuit which gives the PTO to much deference.

    But in IPRs and the like, where there is no unrestricted opportunity to amend, the shibboleth is no longer true. The damage to the patent owner is multiplied. Not only does he lose past damages, but future as well as the claims are invalidate.

    The people who argue in favor of BRI are as disingenuous as they come. Anybody who supports BRI is not to be trusted. Take note who they are.

  • [Avatar for A Rational Person]
    A Rational Person
    April 12, 2016 01:16 pm


    I would suggest that the PTAB effectively is applying a “clear and convincing evidence” standard, but the standard is being applied to the patent’s ability to prove the validity of its claims not to the evidence being used to challenge the patent.

    In other words, on evidence is presented in an IPR by a challenger, the PTAB presumes that that the claims of the patent are invalid unless the patent within its four corners, and possibly its prosecution history, provides proof by clear and convincing evidence that its claims are valid.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 12, 2016 11:13 am


    We are in agreement. I’m under no illusion. I realize the PTAB does not provide a presumption of validity. Quite the opposite. It seems there is a presumption of invalidity. I’d go even farther and say that at least until recently the PTAB at the institution stage seemed to also apply a presumption of invalidity as well.

    I realize the PTAB does not apply clear and convincing evidence, but patents are still supposed to be presumed valid. I don’t for the life of me understand how a presumption of validity can exist when BRI is applied.


  • [Avatar for Anon]
    April 11, 2016 10:28 pm


    The direct result of the initiation decision, in the placing of the patent in question back into the patent Office, is the loss of the presumption of validity (as well as the application of BRI instead of the normal construction practices for the property that is a patent).

    No matter what happens after that point – and why this is indeed separate from the ensuing decision on the merits, that stick is gone at the point of initiation.

    Gone without recompense.

    Gone without possibility of review.

    Not sure if your phrasing here of “presumed invalid” is meant to be the same, or perhaps meant as a bit of hyperbole, but make no mistake, the presumption of validity is indeed taken at the initiation point.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 11, 2016 09:22 pm


    I don’t know of a law that says patents are presumed invalid when they return to the patent office. What am I missing?


  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    April 11, 2016 07:54 pm

    Gene, the difference between the two issues is that BRI was not required by Congress by any statute for IPR challenges to patent claims, whereas a “preponderance” test was – 35 U.S.C. 316(e).
    But in any case, it is often asserted that the “presumption of validity” in patent litigation is not nearly as powerful as the unique judicial requirement of “clear and convincing evidence” of invalidity. I have not ever heard of that being attempted to be asserted in an IPR? But since only patent or publication contents can be asserted in an IPR, there is much less opportunity for dubious evidence in an IPR, and they are already tough on requiring proof of publication dates or provisional application benefit support when it is critical.

  • [Avatar for Anon]
    April 11, 2016 06:14 pm

    Gene – another caught in the buffer (a couple of hours ago), please release

  • [Avatar for Anon]
    April 11, 2016 03:55 pm

    Gene @ 7,

    One small problem with your “should be presumed valid.”

    Congress wrote the law otherwise, and thus takes that stick from the bundle of property rights at the initiation decision point.

    How do you propose the courts (both Article III and PTAB) get around what Congress did?

  • [Avatar for Patent Investor]
    Patent Investor
    April 11, 2016 03:06 pm

    Surely there is some sort of punishment for knowingly making false representations to SCOTUS in an amicus brief. This is not just a difference of opinion, this is out right fabrication!

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 11, 2016 03:00 pm


    If patents are construed at the PTAB the way they are in district court that would not only mandate a Phillips construction, which the Federal Circuit explains is the true and correct construction in contrast with BRI, but it would also presumably require patents to be presumed valid.


  • [Avatar for Pro Se]
    Pro Se
    April 11, 2016 02:29 pm

    They are dependant on BRI

    See: http://edwinhernandez.com/2016/03/05/unified-patents-ipr-for-8886308-patent/

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    April 11, 2016 09:55 am

    Gene, as you note, both BRI and Phillips claim interpretation must refer to the specification for claim interpretation. But as to prior prosecution, application examiners do not read claims more narrowly on that basis, and could not, since prior prosecution disclaimers could still be be withdrawn at that point. I have not heard of IPR APJs refusing to consider prior prosecution statements for claim limitations so I do not know if that has made a practical difference or not. They are not bound by the MPEP.
    However, note that Phillips states that:
    “because the prosecution history represents an ongoing negotiation between the PTO and the
    applicant, rather than the final product of that negotiation, it often lacks the clarity of the specification and thus is less useful for claim construction purposes. See Inverness Med. Switz. GmbH v. Warner Lambert Co., 309 F.3d 1373, 1380-82 (Fed.Cir.2002) (the ambiguity of the prosecution history made it less relevant to claim construction); Athletic Alternatives, Inc. v. Prince Mfg., Inc., 73 F.3d 1573, 1580 (Fed.Cir.1996) (the ambiguity of the prosecution history made it “unhelpful as an interpretive resource” for claim construction). Nonetheless, the prosecution history can often inform the meaning of the claim language by demonstrating how the inventor understood the invention and whether the inventor limited the invention in the course of prosecution, making the claim scope narrower than it would otherwise be. Vitronics, 90 F.3d at 1582-83; see also Chimie v. PPG Indus., Inc., 402 F.3d 1371, 1384 (Fed.Cir. 2005) (“The purpose of consulting the prosecution history in construing a claim is to `exclude any interpretation that was disclaimed during prosecution.'”), quoting ZMI Corp. v. Cardiac Resuscitator Corp., 844 F.2d 1576, 1580 (Fed.Cir.1988); Southwall Techs., Inc. v. Cardinal IG Co., 54 F.3d 1570, 1576 (Fed.Cir.1995).
    Some other Fed. Cir. decisions have indicated that a prosecution disclaimer must be clear to effectively limit [narrow] the claim interpretation.

  • [Avatar for Paul F. Morgan]
    Paul F. Morgan
    April 11, 2016 09:13 am

    Gene, several other briefs, including that of former Fed. Cir. Chief Judge Michele, also argue that there is little practical difference to outcomes between the BRI as applied by the PTAB in IPRs and the en banc Phillips claim interpretation the D.C.s should use in patent litigation per Fed. Cir. decisions. [Note that there have been a lot of Fed. Cir. split decisions and inconsistent panel decisions on claim interpretation appeals from district courts.]
    Phillips indicates that in patent litigation a court may chose the interpretation that saves the validity of the claim as between two different plausible interpretations, while BRI would pick the broadest. But it is also argued that since Phillips was decided before the Sup. Ct. imposed a tougher claim ambiguity test there may be less opportunity to save the claim that way?
    Since neither side has presented in their briefs much of any statistical support on this issue, I would be surprised if this is what the Sup. Ct. Cuozzo decision turns on. Even Cuozzo itself has not shown how they would have had an opposite IPR outcome with Phillips rather than BRI claim construction.

  • [Avatar for Gene Quinn]
    Gene Quinn
    April 11, 2016 08:51 am

    Lost in Norway-

    Excellent question. It does indeed seem like the U.S. patent system has morphed over the years to become a system where patents are presumed invalid until proven otherwise. If that does not change there will be little point to continue to seek patents in the U.S.


  • [Avatar for Lost In Norway]
    Lost In Norway
    April 11, 2016 05:22 am

    Thanks Gene for the article.

    For the life of me I cannot figure out why there is this assumption that a patent is invalid under review. What is the point of getting a patent in the first place if it assumed to be invalid as soon as an infringer decides that it is worth infringing?

  • [Avatar for Anon]
    April 10, 2016 09:22 am

    Another interesting angle, Gene – thanks.

    I would tie this to my earlier views in positing that this presumption of validity is but one of the property characteristics earned at grant – when the inchoate right is made into a true property right. It is a stick in the bundle of property rights, and as such, earns other constitutional protections that such things as life, liberty, and property have under the constitution.

    This is not to say that Congress cannot set up a system to take property (or sticks in the bundle of property) – they can (see eminent domain). But Congress cannot set up ANY system to take property without recompense and due process, and if Congress DOES act to set up a system that violates protections for existing property, THEN the courts MUST find such a law to be unconstitutional. This too is why I stress that the issue needs to be put to the court that this taking is at the initiation point – and is separate from and subsequent decision on the merits. I will point out that the CAFC has recently made decisions that reflect this separate aspect of law. The subsequent adjudications do not – and cannot – “save” the taking that occurs at the point of initiation.

    Finding a part of the America Invents Act to be unconstitutional (any part) is when the “fun” begins, given that the courts ALSO cannot rewrite the law and effectively make a law that itself explicitly considered and rejected the notion of separability. The “savings power” of the court simply does not abrogate the separation of powers doctrine, seeing as patent law is expressly delegated to one and only one branch of the government (and even though one branch may share its authority with another, such sharing has its requirements which are absent in this particular matter).