[author: Sherry M. Knowles]

Athena Diagnostics filed a Petition for Rehearing of the CAFC decision in Athena Diagnostics v. Mayo on April 8, 2019.  Amicus Briefs are due April 22, 2019.  Patent Docs has reported on this decision, which continues to apply U.S. Supreme Court-created common law to the analysis of 35 U.S.C. § 101.

Knowles IP Strategies LLC (Sherry M. Knowles) and AddyHart (Meredith Addy) intend to file an Amicus Brief in support of neither party but requesting that the CAFC carry out its constitutional duty to apply strict statutory construction of the literal words of 35 U.S.C. § 101 to decide the case (see "Unconstitutional Application of 35 U.S.C. § 101 by the U.S. Supreme Court," 18 J. Marshall Rev. Intell. Prop. L. 144 (2018), which was discussed and can be accessed here).

As with other recent CAFC and U.S. Supreme Court cases on patent eligibility, the Athena decision omits an appropriate analysis of the wording of the statute it is applying ("Whoever invents or discovers"), and its opinion is inconsistent with the wording of the statute.  Instead, it applies judicial exceptions to the statute, which have been created by the U.S. Supreme Court as elaborated in its new common law on the subject.  However, as recently well stated by the U.S. Supreme Court in Henry Schein, Inc. v. Archer & White, Inc. (No. 17-1272; January 8, 2019):  "This Court may not engraft its own exceptions onto the statutory text".

If your institution or company or you are interested in joining this brief, please send a request to amicus@kipsllc.com by April 17, 2019.  The U.S. Constitution is not self-enforcing.  The people and institutions of the United States must demand it.