Bhagat v. Iancu is a freshly submitted petition for writ of certiorari now pending in advance of the United States Supreme Courtroom. (Circumstance No. 18-277).   Bhagat is the founder and CEO of Asha Nutrition and is trying to find to patent a lipid-formulation – that contains a combination of omega-6 and omega-3 faty acids at a ratio of 4:1 or increased.

The USPTO refused to challenge the patent discovering the claims barred each by on eligibility (101) and anticipation (102) grounds.  On charm, the Federal Circuit affirmed.   The 101 denial is most appealing.  The PTAB uncovered that that claimed fatty-acid mixtures previously come about the natural way in walnut oil and olive oil.  And, whilst the claims need (by way of disclaimer) that the combination of oils occur from diverse resources, the Board uncovered them to be directed to a natural phenomenon.  On charm, the Federal Circuit agreed — discovering that the initial ingredients of walnut oil and olive oil are natural merchandise and the mixtures have been not shown to be a “transformation of the natural merchandise, or that the claimed mixtures have attributes not possessed by these merchandise in character.”  [Query – are the the oils themselves product of nature?]

This opinion follows Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948).  In that situation, the Supreme Courtroom discussed that

The [claimed] combination of species generates no new bacteria, no transform in the six species of bacteria, and no enlargement of the selection of their utility. . . . They serve the finishes character initially presented and act pretty independently of any effort of the patentee. . . .

The features of these bacteria, like the warmth of the sunshine, electric power, or the features of metals, are component of the storehouse of understanding of all adult males. They are manifestations of rules of character, absolutely free to all adult males and reserved exclusively to none. He who discovers a hitherto not known phenomenon of character has no assert to a monopoly of it which the legislation acknowledges. If there is to be invention from these kinds of a discovery, it have to occur from the software of the legislation of character to a new and useful conclude.

The new petition raises a few questions:

1. a. No matter whether the Federal Circuit erred in discovering petitioner’s patent software claims unpatentable underneath 35 U.S.C. § 101 because the court docket unsuccessful to use the accurate patent eligibility common underneath this Court’s conflicting holdings in Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127 (1948) and Ass’n for Molecular Pathology v. Myriad Genetics, Inc., 569 U.S. 576 (2013).

1. b. No matter whether the Federal Circuit erred in discovering petitioner’s patent software claims unpatentable underneath 35 U.S.C. § 101 because the court docket did not use the patent-eligibility common set forth in Myriad.

2. No matter whether the Federal Circuit erred in affirming the USPTO’s decisions underneath 35 U.S.C. §§ 101 and 102(b) because it unsuccessful to use “meaningful review” to that decision, as essential by the Administrative Process Act.

2018 Read through the Petition

The broadest assert in rivalry reads as follows:

65. A lipid-made up of formulation, comprising a dosage of omega-6 and omega-3 fatty acids at an omega-6 to omega-3 ratio of 4: 1 or increased, contained in a person or far more complementing casings providing controlled shipping and delivery of the formulation to a matter, wherein at the very least a person casing contains an intermixture of lipids from diverse resources, and wherein (1) omega-6 fatty acids are 4-75% by fat of total lipids and omega-3 fatty acids are .1-30% by fat of total lipids or (2) omega-6 fatty acids are not far more than 40 grams.

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