Procedural Process Errors, and Uninfringed Product by Process Claims = Certiorari?

At its conference today, the Supreme Court may decide, or decline, to consider the product-by-process issues in Astrellas Pharma v. Lupin Ltd., 09-335. The mystery of the chemistry was detailed by blawgers right after the CAFC issued its 8-4 decision on May 18, 2009. In the end, the CAFC ruled that that only the claimed product of a claimed process can be infringed.
The petitioner, after a 5-page table of cases, says it’s a case “without precedent,” then follows that with “the Federal Circuit violated the Court’s precedent.” Indeed, on pg. 16, petitioner points to an instance in the majority opinion that “ignores over 110 years of precedent.” One wonders if the rationale of 100 years ago to allow claiming a novel, but mysterious, product of known process steps is still viable in today’s laboratories.
Initially, petitioner argues error with the CAFC ruling en banc, sua sponte (my, those Latin classes at X have come in handy) to resolve an intra-circuit conflict about product by process claims. If the Supreme Court takes an issue, then it is more likely to review patent issues than Circuit operating procedures.
Petitioner’s further contentions regard fears that the CAFC crossed the bright-line rule that patent claims be interpreted the same for validity and infringement purposes. That point is key to disputes between the majority opinion or J. Rader and the dissent of J. Newman. And too, in a nutshell, it provokes the issue: what’s the issue, and how should product-by-process claims be treated? The legal inquiry may devolve upon claim interpretation (nonstatutory), or definiteness and full enablement (statutory), or 110 years of precedent (?), or more plainly, what ground sustains product-by-process claiming (nonstatutory).
The respondents point to the en banc issue arising within a “rarely invoked exception” for “rare” products that are not understood, but are known only as the product of a fully enabled process. That “exception” is nonstatutory, like many of the central issues. Respondents’ arguments also highlight whether the fundamental question is claim interpretation – should a claim be construed to cover unclaimed products of claimed process – or is it some broader inquiry into product-by-process claiming.
The proverbial ‘fly on the wall’ at today’s in camera conference (one more Latinism) will hear how constitutional rights have been stripped, property taken without due process, statutes violated, etc. When the Astrellas petition comes up, then that fly will wonder whether the CAFC’s treatment of nonstatutory product-by-process claims deserves further, Supreme review.