The Yale Law Journal Online: New Content

The Yale Law Journal Online recently published a Summary Judgment series on the Supreme Court’s recent decision in Mayo Collaborative Services v. Prometheus Laboratories, Inc., featuring Essays by Jacob S. Sherkow and Rebecca S. Eisenberg.

Sherkow writes that

[t]he Mayo Court’s novel test for patent eligibility—whether or not an invention involves “well-understood, routine, conventional activity, previously engaged in by researchers in the field”—focuses on how an invention is accomplished rather than what an invention is. That concern with the method of invention poses several normative, statutory, and administrative difficulties. Taken seriously, the “how” requirement will likely have broad effects across all levels of patent practice.

And Eisenberg comments on the legacy of Mayo and the significance of an upcoming Supreme Court case concerning patent eligibility:

The Supreme Court’s decision last Term in Mayo v. Prometheus left considerable uncertainty as to the boundaries of patentable subject matter for molecular diagnostic inventions.  First, the Court took an expansive approach to what counts as an unpatentable natural law by applying that term to the relationship set forth in the challenged patent between a patient’s levels of a drug metabolite and the indication of a need to adjust the patient’s drug dosage. And second, in evaluating whether the patent claims add enough to this unpatentable natural law to be patent eligible, the Court did not consult precedents concerning the patentability of claims involving natural laws and natural products. Instead, it turned to two seemingly inconsistent decisions that reached opposing conclusions concerning the patent eligibility of industrial methods that used mathematical algorithms. The Court’s analysis invites challenges to many issued patents, while offering little guidance for resolving them. This Term, in the Association for Molecular Pathology case, the Court has another opportunity to clarify the meaning of its exclusion of natural phenomena from patent eligibility.

The Yale Journal Online also published an Essay by Alec Ewald entitled Escape from the “Devonian Amber”: A Reply to Voting and Vice. Ewald’s Essay

replies to Richard Re and Christopher Re’s Voting and Vice. That article, recently published in The Yale Law Journal, demonstrates that the inclusion of the phrase “other crime” in Section 2 of the Fourteenth Amendment was no accident, and the authors contend that widespread support for criminal disenfranchisement in the Reconstruction Congress should enhance the restriction’s status today. This Essay argues that those who wrote disenfranchisement into the U.S. Constitution did so from a context far removed from the views to which Americans adhere today when they talk about voting and political equality. Despite the fact that some Republicans made principled arguments contrasting criminal disenfranchisement with African-American enfranchisement, citizens and legislators who propose to abolish or restrict disenfranchisement neither dishonor nor render incoherent the Reconstruction Amendments.

Preferred citations:

Jacob S. Sherkow, And How: Mayo v. Prometheus and the Method of Invention, 122 YALE L.J. ONLINE 351 (2013),

Rebecca S. Eisenberg, Prometheus Rebound: Diagnostics, Nature, and Mathematical Algorithms, 122 YALE L.J. ONLINE 341 (2013),

Alec Ewald, Escape from the “Devonian Amber”: A Reply to Voting and Vice, 122 YALE L.J. ONLINE 319 (2013),

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