Amicus Curiae Brief — MSN Pharmaceuticals, Inc., et al., Petitioners v. Novartis Pharmaceuticals Corporation

Supreme Court briefOct 8, 2025

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No. 25-225

IN THE

Supreme Court of the United States

MSN PHARMACEUTICALS, INC., et al.,

Petitioners,

NOVARTIS PHARMACEUTICALS CORPORATION,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the Federal Circuit

BRIEF OF PROFESSORS JONATHAN MASUR

AND LISA OUELLETTE AS AMICI CURIAE IN

SUPPORT OF THE PETITION

DAVID J. ZIMMER

Counsel of Record

ZIMMER, CITRON & CLARKE LLP

130 Bishop Allen Drive

Cambridge, MA 02139

(617) 676-9421

david@zimmercitronclarke.com

Counsel for Amici Curiae

October 8, 2025

TABLE OF CONTENTS

INTEREST OF AMICI CURIAE ................................1

INTRODUCTION ........................................................2

ARGUMENT ...............................................................5

The Federal Circuit has failed to

coherently apply section 112’s disclosure

requirements in the context of afterarising technology, calling for this Court’s

intervention...........................................................6

A. Enablement .....................................................7

B. Written Description.......................................11

II. This case presents an ideal vehicle for

addressing these issues. .....................................14

III. Though less relevant at the certiorari

stage, amici’s proposed approach correctly

resolves these issues based on

foundational patent principles. ..........................15

CONCLUSION ..........................................................18

TABLE OF AUTHORITIES

Cases

Amgen Inc. v. Sanofi,

598 U.S. 594 (2023) ..................................................7

Boyden Power-Brake Co. v. Westinghouse,

170 U.S. 537 (1898) ................................................ 16

Chiron Corp. v. Genentech, Inc.,

363 F.3d 1247 (Fed. Cir. 2004) .... 3, 8, 11, 12, 13, 14

Festo Corp. v. Shoketsu Kinzoku Kogyo

Kabushiki Co.,

535 U.S. 722 (2002) ..................................................5

Graver Tank & Mfg. Co. v. Linde Air Prod.

Co.,

339 U.S. 605 (1950) ................................................ 16

In re Hogan,

559 F.2d 595 (C.C.P.A. 1977) ........... 3, 7, 8, 9, 14, 17

Nuvo Pharms. (Ireland) Designated Activity

Co. v. Dr. Reddy’s Lab’ys Inc.,

923 F.3d 1368 (Fed. Cir. 2019) .............................. 11

Pfaff v. Wells Elecs., Inc.,

525 U.S. 55 (1998) ....................................................5

Steuben Foods, Inc. v. Shibuya Hoppmann

Corp.,

127 F.4th 348 (Fed. Cir. 2025) ............................... 17

Statutes

35 U.S.C. § 112 ........................................................ 2, 5

35 U.S.C. § 112(a) .................................................. 7, 10

Other Authorities

Jonathan S. Masur & Lisa Larrimore

Ouellette, Disclosure Puzzles in Patent Law,

92 U. Chi. L. Rev. 1609 (2025) ................. 1, 6, 15, 16

iii

INTEREST OF AMICI CURIAE 1

Amici are two professors who have written extensively on the questions presented in this case regarding the impact of after-arising technology on the enablement and written description requirements of 35

U.S.C. § 112.

Jonathan Masur is the John P. Wilson Professor of

Law at the University of Chicago Law School. He is

also the Director of the Wachtell, Lipton, Rosen &

Katz Program in Behavioral Law, Finance and Economics and the David and Celia Hilliard Research

Scholar.

Lisa Larrimore Ouellette is the Deane F. Johnson

Professor of Law at Stanford Law School and a Senior

Fellow at the Stanford Institute for Economic Policy

Research.

Professors Masur and Ouellette are among the

leading scholars in the field of patent law. They are

co-authors of Patent Law: Cases, Problems, and Materials (4th ed. 2025), the leading patent casebook,

which has been adopted by over seventy law schools.

They have also written extensively on the application

of enablement and written description in the context

of after-arising technology. Most importantly, they

are the authors of Disclosure Puzzles in Patent Law,

92 U. Chi. L. Rev. 1609 (2025).

1 Counsel for amici curiae notified counsel for all parties at least

10 days prior to the due date of amici’s intention to file this brief.

Amici certify that no counsel for a party authored this brief in

whole or in part and no person or entity, other than amici or their

counsel, has made a monetary contribution to the preparation or

submission of this brief.

Amici have no financial interest in the outcome of

this case; they share a professional interest in ensuring that patent law develops in a way that serves the

public interest.

INTRODUCTION

Imagine a patent that claims a machine that includes a “metal gear.” The patent’s specification describes gears made from every then-known metal.

The specification also discloses how to make gears

from those metals and use those gears in the claimed

machine. At the time the patent was issued, the patent thus satisfied the two key disclosure requirements of 35 U.S.C. § 112. It satisfied the “enablement” requirement because it taught how to make and

use machines with metal gears. And it satisfied the

“written description” requirement because it described all such machines.

Now imagine that, several years after the patent

issued, a new metal is invented—call it mithril—that

is much softer than any metal known at the time of

the patent. What does that after-arising technology

do to the claim? The claim on its face covers a machine

with gears made from mithril. But the specification

neither describes nor explains how to make and use

gears made from that new metal—because the metal

did not exist when the specification was written.

The Federal Circuit has proven unable to coherently resolve these important questions relating to after-arising technology—urgently calling for this

Court’s intervention. As to enablement, the Federal

Circuit has held that so long as the specification enables the full scope of the claim when the patent is issued, the patentee can claim after-arising technology

that falls within the scope of the claim without any

need to show that the specification teaches how to implement the claim with the after-arising technology.

E.g., In re Hogan, 559 F.2d 595 (C.C.P.A. 1977); Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1254-55

(Fed. Cir. 2004). This blows a giant hole in the enablement requirement. Imagine, for instance, that

mithril is so soft that it requires special techniques to

mold into functioning gears—techniques that were

not known when the patent was issued. Allowing the

patentee to claim the machine with mithril gears

without teaching how to make such a machine gives

the patentee a windfall, extending its monopoly to

cover machines with metal gears that the patentee

undisputedly did not enable.

As to written description, the Federal Circuit initially seemed to take exactly the opposite approach,

holding that a patent is invalid for lack of written description if it does not adequately describe after-arising technology that falls within the scope of the

claims. Chiron, 363 F.3d at 1255. This creates exactly

the opposite problem: It risks invalidating claims that

were valid when issued for failing to describe examples of the claimed invention that did not exist at the

time of the patent. The Federal Circuit in this case

seems to have backtracked from that approach—without acknowledging its prior decisions. But, as explained below, it did so for bizarre reasons that compound rather than resolve the confusion.

As discussed below, the correct approach to these

questions is relatively straightforward and flows naturally from basic principles of patent law. In short,

after-arising technology should never invalidate a

claim that was valid when issued. But neither should

a patentee be able to assert a claim against a product

that a skilled artisan could not have made and used

with access to both the specification’s disclosures and

knowledge of the new technology. To take the mithril

example above, the invention of mithril should not invalidate a claim to a machine with “metal gears” that

was valid when issued. And if mithril could be substituted one-to-one for the other metals described in the

specification, then the patentee should be able to cover

a machine with mithril gears. But the patentee

should not be able to assert the claim against a machine with mithril gears if mithril had unusual properties such that a skilled artisan would not have been

able to make and use the machine with mithril gears

based on the specification’s disclosures and knowledge

of mithril. As amici explain, a correct application of

existing patent doctrine leads to that logical result.

At this stage, though, the important point is not

that amici’s proposed solution is the correct one but

that, despite multiple opportunities, the Federal Circuit has proven unable to develop a coherent approach

to addressing the impact of after-arising technology

on section 112’s disclosure requirements. The only

way to clear up the jumble the Federal Circuit has created in this crucial area of patent law is for this Court

to intervene.

This case presents an unusually clean vehicle for

this Court to address these issues. Novartis claimed

a “combination” of two pharmaceutical compounds

and enabled and described the only then-known way

of combining them. But scientists discovered that

these compounds can be combined as a “complex,”

with superior pharmaceutical properties. The parties

stipulated that the claim covers such a complex, but it

was not enabled or described in the specification (because it did not exist when the specification was written). This case is thus very close to the mithril hypothetical described above and provides an ideal case to

address the complicated and important issues that the

Federal Circuit has failed to coherently resolve.

This Court should grant the petition for a writ of

certiorari.

ARGUMENT

The patent system rests on a fundamental quid pro

quo: In exchange for “public disclosure of new and useful advances in technology,” the inventor is given a

limited monopoly over those advances. Pfaff v. Wells

Elecs., Inc., 525 U.S. 55, 63 (1998); see also, e.g., Festo

Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co., 535

U.S. 722, 736 (2002) (“[E]xclusive patent rights are

given in exchange for disclosing the invention to the

public.”).

Two disclosure requirements in 35 U.S.C. § 112

play a key role in aligning patent law with that underlying bargain. Section 112’s “enablement” requirement ensures that the disclosures in the patent’s specification teach a skilled artisan how to make and use

the claimed invention. And section 112’s “written description” requirement ensures that the patent describes the invention, giving the public notice of the

scope of the claimed patent monopoly and preventing

the patentee from drafting claims, years after the initial patent, that expand the scope of the invention.

Applying the enablement and written-description

requirements can be complicated when the patent’s

disclosures enable and describe the full scope of the

invention at the time of the patent, but do not enable

and/or describe post-patent inventions that are covered by the patents’ claims. The Federal Circuit has

failed to coherently apply section 112’s disclosure requirements in this context, adopting rules that divorce the disclosure requirements from their role in

aligning the scope of the patent monopoly to the scope

of the disclosed invention. This Court’s intervention

is urgently needed.

I. The Federal Circuit has failed to coherently

apply section 112’s disclosure requirements

in the context of after-arising technology,

calling for this Court’s intervention.

As amici explain in their article, the Federal Circuit has had multiple opportunities to apply section

112’s enablement and written-description requirements to after-arising technology—including in this

case. See Jonathan S. Masur & Lisa Larrimore Ouellette, Disclosure Puzzles in Patent Law, 92 U. Chi. L.

Rev. 1609, 1636-62 (2025). Yet the Federal Circuit

has failed to develop a coherent approach to applying

either doctrine to such technology. It has thus become

clear that this Court’s intervention is needed.

To explain these issues, the brief uses the mithril

hypothetical described above, in which an inventor

named Aleida invents a machine that uses a “metal

gear.” One year after she files for her patent, someone

else invents a new type of metal called mithril that

falls within the literal scope of the claims even though

no one foresaw mithril’s existence when the claim was

drafted. 2

A. Enablement

Section 112 states that a patent’s specification

must “enable any person skilled in the art ... to make

and use” the patented invention. 35 U.S.C. § 112(a).

To satisfy this requirement, a skilled artisan must be

able to “make and use a patented invention” with only

a “reasonable amount of experimentation.” Amgen

Inc. v. Sanofi, 598 U.S. 594, 612 (2023). The amount

of experimentation that is permissible “will depend on

the nature of the invention and the underlying art.”

Id. The Federal Circuit has long held that, as a general matter, enablement is judged at the time of filing—an inventor cannot file for a patent and then figure out how to construct or use the invention later.

Hogan, 559 F.2d at 605-06.

As applied to after-arising technology, one might

imagine this means that Aleida’s claim to a gear made

with any metal, if understood to encompass mithril, is

not enabled. At the time of filing, Aleida did not know

how to make (or obtain) mithril for use in her invention—nobody did.

Yet the law as it currently stands is directly to the

contrary. For the Federal Circuit, evaluating enablement at the time of filing means evaluating whether

the claim is enabled for whatever technology existed

2 Amici assume, consistent with the facts of this case, that the

claim itself covers the after-arising technology. Additional issues

arise where the claim might not cover the after-arising technology. See Masur & Ouellette, 92 U. Chi. L. Rev. at 1636-48.

and was encompassed by the claim at the time of filing,

not for any after-arising technology that falls within

the claim scope. The seminal case is In re Hogan, decided by the Court of Customs and Patent Appeals

(the predecessor to the Federal Circuit) in 1977. In

Hogan, the patentee claimed an entire genus of polymers and disclosed a method for making them. Id. at

597-98. The patentee argued that at the time of filing,

only “crystalline” polymers were known in the art, and

it was not disputed that the specification fully enabled

the production of crystalline polymers. Id. at 605-06.

However, at some later point, a different inventor discovered another species of polymer, the “amorphous”

polymer. Id. The court held that amorphous polymers

fell within the literal scope of the claim, which was not

limited to only crystalline polymers. Id. But it did not

invalidate the claim on this basis. Rather, the court

held the claim was enabled as of the time of filing because the specification properly enabled crystalline

polymers, the only species of polymers known at that

moment. Id. Because amorphous polymers were unknown, they were irrelevant to the enablement determination. And because the claim was enabled as of

the moment of filing, it was enabled forever, full stop.

Id. at 605. Later Federal Circuit cases have adopted

the same logic and reached the same result. E.g., Chiron Corp. v. Genentech, Inc., 363 F.3d 1247, 1254-55

(Fed. Cir. 2004).

Under this approach, the patentee often will get to

have it both ways. Per the above example, if Aleida

can convince the court to interpret her claim broadly

enough to literally encompass the after-arising technology, she can sue another party for making a variant with mithril. It does not matter to the Federal

Circuit whether a person with skill in the art who read

Aleida’s specification could actually produce the variant of the invention with mithril. So long as her claim

is enabled based on the metals that existed when she

filed for a patent, it is forever enabled. Aleida gets the

sweet (mithril infringes) without the bitter (testing

whether mithril is enabled).

The Hogan approach violates the principle that a

patent right should be commensurate with its disclosure. Suppose Aleida’s disclosure would not have enabled a variant of her invention that used mithril at

the time she filed her patent. That is, imagine that,

at the time Aleida filed for the patent, a skilled artisan

who had access to Aleida’s patent specification and access to mithril still could not make a version of her

invention using mithril. Perhaps mithril is softer

than other metals, and thus it would not function

properly as a material for gears. Or perhaps it is

harder than other metals and could not be molded into

a gear using known methods. Mithril could not simply

be plugged into the rest of her invention, as one might

plug in gears made of steel or iron. Some additional

step is required—the mithril would have to be combined with some other type of metal, or the invention

would need to be adjusted to account for the difference

between mithril gears and other metal gears.

Under these circumstances, Aleida should not be

able to capture variants of her invention that use

mithril. The common property she identified that applies to all other metals does not apply one-to-one to

mithril. Someone else must do work to fill in the gap

between what Aleida’s specification discloses and a

variant of her gears that employs mithril. That additional work is what renders her patent insufficient to

warrant stretching her claim to include mithril within

its scope. She has not provided the necessary quid and

does not deserve the quo.

Or to offer another hypothetical, suppose Aleida

drafted a claim in 1997 involving a software algorithm

on a “computer” that was enabled for all computers

existing in 1997. If it would be easy to implement that

invention with the iMac computer introduced in 1998,

then the claim should validly cover that after-arising

technology. But if it takes more than a reasonable

amount of experimentation to implement Aleida’s invention with a quantum computer after they were

first created in 1998, then Aleida should not be allowed to capture that variant of her invention.

Amici discuss a proposed solution to this problem

below. But the key point for purposes of the petition

is that the Federal Circuit has consistently failed to

apply the enablement requirement in this context in

a way that complies with the bargain that justifies the

patent monopoly. Instead, the court has given patentees a windfall, allowing them to extend their patent

monopoly to cover inventions that they did not teach

the public how to make and use—and likely did not

even know how to make or use themselves.

B. Written Description

Section 112 also requires that the patent’s “specification shall contain a written description of the invention.” 35 U.S.C. § 112(a). “That requirement is

satisfied only if the inventor conveys with reasonable

clarity to those skilled in the art that, as of the filing

date sought, he or she was in possession of the invention, and demonstrates that by disclosure in the specification of the patent.” Nuvo Pharms. (Ireland) Designated Activity Co. v. Dr. Reddy’s Lab’ys Inc., 923

F.3d 1368, 1376 (Fed. Cir. 2019) (quotation marks,

brackets, and alterations omitted). One of the primary purposes of written description is to ensure that

the patentee does not seek to claim more than she invented, especially by amending her claims, after the

specification was drafted, to encompass new inventions or target competitors’ products.

The Federal Circuit’s key precedent applying the

written-description requirement in the context of after-arising technology is its decision in Chiron v.

Genentech. That case involved a claim for a type of

“monoclonal antibody.” 363 F.3d at 1250. There are

several ways of creating monoclonal antibodies: they

can be made within humans, within animals, or as

“chimeric” antibodies that incorporate both human

and animal genetic material. Id. When the patent

was filed, chimeric antibodies had not yet been discovered and thus were not described in the specification—they were after-arising technology. Id. at 1251.

But the court construed “antibody” in the claim to include chimeric antibodies and adopted the Hogan position that enablement is judged at the time of filing.

The court thus concluded that the claim was enabled

and was infringed by chimeric antibodies because it

taught how to make all types of antibodies that existed at that moment. Id. at 1254-55. The fact that it

did not and could not enable chimeric antibodies was

viewed as irrelevant to whether the claim could capture these after-arising variants. This was already a

misstep. As explained in the previous section, the Hogan approach is misguided.

The Chiron court then went on to hold the claim

invalid for lack of written description on the theory

that the claim encompassed chimeric antibodies, but

the relevant specification offered no indication that

the inventor had possession of chimeric antibodies at

the time of the effective filing date. Id. at 1255. Of

course, the inventor could not possibly have possessed

chimeric antibodies—chimeric antibodies did not yet

exist. There is an obvious tension between the court’s

approaches to written description and enablement:

the latter is judged as of the time of filing, while the

former is (apparently) judged at the time of litigation,

with reference to after-arising technology. Yet that

tension goes unremarked upon in the opinion.

The Federal Circuit’s approach to written description applied in Chiron also departs from the basic patent bargain—though for the opposite reason as the

Federal Circuit’s approach to enablement. If the approach outlined in Chiron were taken seriously, it

would mean that every claim that captures after-arising technology is invalid for lack of written description, even if a skilled artisan with access to the specification and knowledge of the after-arising technology

could easily practice the patent. Only in the rare instance where the applicant was immensely prescient

(or lucky) to foresee the arrival of new technology

would she escape this doctrinal vise grip.

The Federal Circuit in this case seemed to walk

back its holding in Chiron. Here, the patent claimed

two hypertension drugs “in combination,” and it disclosed the only known combination method at the time

of filing: a physical mixture. Pet. App. 15a. Later researchers discovered a method of combining the drugs

in a “complex,” in which they were connected by weak

chemical bonds. Pet. App. 15a. The district court construed the claim to cover this after-arising type of

combination, but based on Chiron, it held the claims

invalid for lack of written description. Pet. App. 11a13a.

The Federal Circuit reversed, but for a bizarre reason: even though the parties stipulated that the version of the invention made with a complex infringed

the claims, the Federal Circuit asserted that this after-arising technology “is not what is claimed.” Pet.

App. 15a-17a. The Federal Circuit thus arrived at the

right answer for the wrong reasons, and it failed to

explain why this result is consistent with Chiron. Indeed, it did not discuss Chiron at all.

The net result is that, as with enablement, the

Federal Circuit has proven unable to develop a coherent approach to written description in the context of

after-arising technology. Only this Court’s intervention can correct these intractable errors.

II.

This case presents an ideal vehicle for

addressing these issues.

As the petition and the above discussion make

clear, this case presents an ideal vehicle to address the

correct application of enablement and written description in the context of after-arising technology. In

short, Novartis’s patent claimed a pharmaceutical

composition of two hypertension drugs, valsartan and

sacubitril, “in combination.” Pet. App. 7a. When the

patent was filed, the only known method of combining

these chemicals was in a physical mixture, and that is

the only combination method disclosed in the specification. Pet. App. 15a. In the intervening years, however, scientists discovered a means of combining the

two chemicals in a “complex,” an arrangement in

which they are connected by weak chemical bonds.

Pet. App. 89a. This is the method used to make the

accused infringing drug. Pet. App. 15a. The district

court, applying Chiron, held that the patent satisfies

the enablement requirement even though it does not

teach how to use the newly invented “complex,” but

that the patent is invalid for lack of written description because it does not describe the complex. Pet.

App. 11a-13a. And, as discussed, the Federal Circuit

then reversed the court’s finding of lack of written description on the theory that the “complex” “is not what

is claimed”—even though it was undisputedly covered

by the claims. Pet. App. 15a-17a.

This case thus presents an ideal opportunity for

this Court to reconsider both (1) the Federal Circuit’s

categorical Hogan/Chiron rule that allows a patentee

to assert its monopoly over after-arising technology

that is not enabled by the specification and (2) the

Federal Circuit’s incoherent approach to applying the

written-description requirement in this context,

which requires that the patentee describe not-yet-invented examples of the invention.

III.

Though less relevant at the certiorari

stage, amici’s proposed approach

correctly resolves these issues based on

foundational patent principles.

The Federal Circuit’s inability to develop a coherent approach to section 112’s disclosure rules in the

context of after-arising technology calls out for this

Court’s intervention regardless of how best to correct

the Federal Circuit’s errors. Amici therefore only

briefly summarize their proposed approach, which is

described in more detail in their article. Masur &

Ouellette, 92 U. Chi. L. Rev. at 1650-56, 1658.

Amici believe that, under basic patent law principles, the crucial question for purposes of after-arising

technology should be whether the version of the claim

using after-arising technology is enabled based on the

information provided in the specification plus the after-arising technology. To return to the mithril example, if mithril would have worked perfectly well as a

material for the claimed gears based purely on the disclosures in the patent, then the patent should both

satisfy the written description and enablement requirements and be read to cover mithril gears. If, by

contrast, it would have taken some special, unknown

and undisclosed technique to make or use mithril

gears in the claimed machine, then the patentee

should not be able to obtain a windfall by obtaining a

monopoly over the machine with mithril gears. But,

in amici’s view, this should not mean the claim is invalid—just that it doesn’t reach the non-enabled after-arising technology as a matter of infringement.

That result is easier to reach as a matter of fundamental patent law principles than as a matter of doctrine. Reaching that result doctrinally is tricky because claims are generally read to have their ordinary

meaning and one of the assumptions in these afterarising technology cases is that the claim, on its face,

does cover the after-arising technology—for instance,

“metal gears” includes mithril gears and valsartan

and sacubitril “in combination” includes a complex of

the two compounds.

Amici believe the best solution lies in the reverse

doctrine of equivalents. 3 Under the reverse doctrine

of equivalents, which this Court has applied for more

than a century, a device that would ordinarily literally

infringe a patent claim will be held not to infringe that

claim if it operates on a wholly different “principle”

from the principle described in the patent. E.g.,

Graver Tank & Mfg. Co. v. Linde Air Prod. Co., 339

U.S. 605, 608-09 (1950); Boyden Power-Brake Co. v.

Westinghouse, 170 U.S. 537, 568 (1898). To be sure,

that doctrine has not often been invoked in recent

Alternatively, non-enabled after-arising technology could be

categorically excluded from literal claim scope as a matter of

claim construction. In addition, ensnarement doctrine should be

used to prevent patentees from asserting claims against non-enabled after-arising technology through nonliteral infringement

under the doctrine of equivalents. See Masur & Ouellette, 92 U.

Chi. L. Rev. at 1639-41, 1651.

years, and there is an unanswered question as to

whether it survived the Patent Act of 1952. See

Steuben Foods, Inc. v. Shibuya Hoppmann Corp., 127

F.4th 348, 357 (Fed. Cir. 2025) (acknowledging but not

deciding this issue). But the doctrine is an excellent

fit for the problem created by non-enabled after-arising technology: a later-arising device falls within the

literal scope of the patent claim, but because of the

new technology it employs—technology that the patent does not enable—it operates by a different principle and hence falls outside the bounds of what the

patent should be able to capture.

Amici therefore propose that a court engage in a

three-step inquiry. First, it should evaluate whether

the claim as written was fully enabled and described

at the time of filing, with respect only to the technology and knowledge available at the time of filing. If it

was not, the claim is invalid for lack of enablement

and/or written description. Next, the court should determine if the after-arising technology at suit infringes the claim. If it does not (or if it is an unclaimed

element that is not connected to the claim limitation

itself), the inquiry is over. If it does infringe via an

express claim element, then the court should proceed

to the third step: determine whether the version of the

claim using after-arising technology is enabled based

on the information provided in the specification plus

the after-arising technology. This last step is where

the Court should depart from Hogan—if this third

step is not satisfied, the version of the invention that

incorporates after-arising technology does not infringe the claim.

Ultimately, though, these merits questions are for

another day. What matters for present purposes is

that the Federal Circuit’s precedents in this area have

radically departed from patent law’s basic bargain,

and the Federal Circuit has shown no indication that

it can right the ship. The time has come for this Court