Smithkline Beecham Corporation and Beecham Group, P.L.C. v. Apotex Corp., Apotex, Inc., and Torpharm, Inc., Defendants-Cross

I concur in the court’s judgment finding Claim 1 of the '723 patent invalid, however, I reach the judgment by a different statutory provision. I would find Claim 1 invalid because it encompasses subject matter that is unpatentable under 35 U.S.C. § 101.1

I

A. Authority

The question of patentability under Section 101 does not arise often, and a court’s decision to raise it sua sponte is even less common. The centrality of patentable subject matter to the entire scope of the patent law suggests that there are times when such inquiries are critical. The Supreme Court established long ago that “the…