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Re: postyle post# 56130

Friday, 10/24/2014 2:46:41 PM

Friday, October 24, 2014 2:46:41 PM

Post# of 68424
Well, Mayer couldn't get Wallach to follow him down that road or the majority opinion may have reversed the trial court on BOTH grounds. Mayer wanted to reverse it under 101 whether or not it got reversed for obviousness. Joining to reverse for obviousness may have been a concession for Mayer just to be sure the case got reversed. His questions during oral argument clearly indicated his intent to review the case under 101, and that was a reason I knew he was NOT going to go with VRNG in the appeal. He did the same thing in his prior opinion in a patent case. I cited it a good while back, but that guy was clearly poison for VRNG in this appeal. IF the court rehears the case en banc, Mayer's concurrence regarding 101 may, or may not, be addressed. I'm guessing probably not as it was not the ground for the reversal, but it's possible. Any defendant not raising 101 in an appeal to the CAFC under the current state of that court is a fool. If you draw Mayer on your panel, you pretty much already have 1 of 3 votes in your pocket as he apparently thinks 101 is the coup de grace to put plaintiffs' out of their misery after obtaining victories at the trial court. He obviously doesn't mind obviousness as a bullet to do it with either if he doesn't get to use his 101 silver bullet.



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