Inventors are an intrinsically optimistic lot. Most people when faced with a problem will either make do, or will come up with a temporary solution that allows us to get on with our day. But inventors know that progress is not achieved by just making do, and that the world can be improved, even incrementally, through that nearly undefinable creature known as innovation, and through practical applications of scientific discovery.
I think that patent attorneys share some of this optimism. Don’t laugh! I really do believe that for us to zealously represent our clients before the seemingly arbitrary bureaucracies of the world, we have to be optimistic. When faced with rejections by patent examiners, we persist because we have a deep-rooted belief that there is nearly always some way around the obstacles set before us.
This sense of possibility is why in the first year or so after the rather grim U.S. Supreme Court decision in Mayo v. Prometheus, I counseled my clients that although Mayo had changed the U.S. patenting landscape for medical diagnostic methods, and indeed made things more challenging, the sky had not fallen, and we could and would find a way forward.
It’s been four years now, and I’m going to be blunt: Mayo did bring down the sky on certain diagnostic method claims.
But like I said, I’m an optimist.