How has the Federal Circuit’s decisions in Ochiai and Brouwer affected the need for pre-AIA 35 U.S.C. 103(b)?

The Federal Circuit’s decisions in In re Ochiai and In re Brouwer have significantly impacted the need for relying on pre-AIA 35 U.S.C. 103(b). The MPEP notes:

In view of the Federal Circuit’s decisions in Ochiai and Brouwer, an applicant’s need to rely upon pre-AIA 35 U.S.C. 103(b) should be rare.

These cases addressed whether an otherwise conventional process could be patented if it were limited to making or using a nonobvious product. The decisions generally made it easier to obtain patents on processes using or making novel and nonobvious products without needing to rely on the specific provisions of pre-AIA 35 U.S.C. 103(b).

For a more detailed discussion of these cases, refer to MPEP § 2116.01.

To learn more:

• Federal Circuit
• Ochiai
• Brouwer
• pre-AIA 35 U.S.C. 103(b)
• biotechnology patents