Responsive to the publication of the original SEQUENOM WHITE PAPER, several colleagues have pointed to uncertainties in the patent law with the idea thatcertiorari should be granted in such cases of uncertainty to gain a final resolution. Obviously, if that is a person’s view of the present case, then amici briefing shouldbe encouraged to raise the profile of the case and thus enhance the chance for grant of certiorari.
The attached chart shows that the patent applicant or patentee has a roughly 25 % chance of winning on the merits on a Section 101 issue, if certiorari is granted. What happens if the roughly 75 % probability holds true, here, and the Sequenom invention is held to lack patent-eligibility? How does industry go to the Federal Circuit to deal with a Supreme Court decision against patent-eligibility?
Also attached is a slightly revised version of the original paper, A SEQUENOM WHITE PAPER.