Patent Eligibility Under Mayo/Alice “Two-Step” Test: Invoking Routine and Conventional Elements Is Not Enough

In a series of cases addressing whether inventions are eligible for patent protection under 35 U.S.C. § 101, the U.S. Supreme Court has adopted a two-step analysis. Two recent decisions by the U.S. Court of Appeals for the Federal Circuit illustrate the potentially restrictive effect of that test in two completely different technological fields.

Ariosa Diagnostics v. Sequenom

'The first decision, Ariosa Diagnostics, Inc. v. Sequenom, Inc., No. 2014-1139 (Fed. Cir. Jun. 12, 2015) concerned the discovery of cell-free fetal DNA (“cffDNA”), minute amounts of fetal DNA that circulate in the blood of a pregnant woman. The inventors discovered cffDNA in maternal blood samples, which previously had been discarded as useless, and claimed methods to amplify the trace molecules and test them using standard genetic testing procedures.

The Federal Circuit affirmed a lower court ruling that Sequenom’s claims covering methods of performing prenatal diagnosis and detecting parental inherited DNA in samples were invalid. The court applied the two-step test crafted in Mayo Collaborative Services v. Prometheus Labs., Inc., 132 S. Ct. 2347 (2014). First, the court ruled that the claims were directed to a form of naturally-occurring DNA molecule, which itself would not be patent-eligible. See Assn. for Molecular Pathology v. Myriad Genetics, Inc., 133 S. Ct. 2107 (2013). Second, the claims lacked elements that either individually or as an ordered combination amounted to an “inventive concept” sufficient to transform the nature of the claims into something different from merely the ineligible cffDNA discovery. The court relied on repeated statements by the inventors that the cffDNA molecules should be amplified using conventional polymerase chain reaction (PCR) techniques and analyzed using one of several common detection protocols. The court concluded that, “Thus, in this case, appending routine, conventional steps to a natural phenomenon, specified at a high level of generality, is not enough to supply an inventive concept. . . .  The claims of the ‘540 patent at issue in this appeal are not directed to patent eligible subject matter and are, therefore, invalid.” Slip op. at 13.

The court rejected Sequenom’s argument that the claims should be valid because the newly-discovered cffDNA has many uses beyond those claimed in the patent, and thus the patent did not “preempt” future developments in the field. The court ruled that, “While preemption may signal ineligible subject matter, the absence of complete preemption does not demonstrate patent eligibility.” Slip op. at 14.

As a result, the Sequenom patent is invalid even though the underlying discovery of cffDNA was undoubtedly a historic breakthrough in the field of prenatal medicine. The court noted that “groundbreaking, innovative, or even brilliant discovery does not by itself satisfy the § 101 inquiry.” Slip op. at 16, quoting Myriad, 133 S. Ct. at 2117. In a concurring opinion, Circuit Judge Richard Linn lamented the result, stating that the claimed diagnostic methods based on cffCNA were “truly meritorious” and should be patentable, but nonetheless are ineligible under the “sweeping” language used in the Supreme Court’s Mayo decision.

OIP Techs. v. Amazon.com

In a second decision issued on the same day, the Federal Circuit ruled that a computer-implemented process for determining optimum product prices was ineligible under § 101. OIP Technologies, Inc. v. Amazon.com, Inc., Case No. 2012-1696 (Fed. Cir. Jun. 11, 2015). The patent at issue in OIP claimed a process for automatically determining the price of a product offered for sale (such as over the internet) by testing multiple prices, collecting data on consumer response, calculating a demand curve for the product, and choosing the optimum price. The court applied the same two-step test for patent eligibility. See Alice Corp. Pty. Ltd., v. CLS Bank Int’l, 132 S. Ct. 2347 (2014) (applying Mayo two-step test to computer-implemented processes).

First, the court concluded that the use of consumer data to set product prices by calculating a demand curve is itself an ineligible abstract idea similar to the “fundamental economic concepts” found to be ineligible in previous cases, including Alice (intermediated settlement) and Bilski v. Kappos, 561 U.S. 593 (2010)(hedging against risk of commodity price fluctuation). Applying the second step of the test, the court ruled that the OIP patent claims did not provide an “inventive concept” because they only called for the use of “well-understood, routine, conventional activities,” such as the operation of a general-purpose computer and common computer and network functions. The court noted that the OIP claims were “exceptionally broad” and the patents made clear that one could perform the automated pricing method by “any sequence of instructions designed for implementation on a computer system.” Slip op. at 7. Thus, the court held that OIP’s patent was invalid as ineligible.

Conclusion

The Ariosa and OIP cases underscore the potentially restrictive effect of the Mayo/Alice two-step on patent eligibility across a variety of technologies. The key to establishing eligibility rests in drafting claims that recite a sufficient “inventive concept,” such using a specific unconventional apparatus, employing non-routine activities, or physically transforming an object. In addition, broad statements in the patent specification or prosecution history that an invention takes advantage of prior art practices, while potentially supportive of enablement, may tend to suggest that the invention lacks a sufficient inventive concept. Furthermore, although preemption of future developments in a field is one factor to be considered, it is not part of the two-step test and thus is not enough to salvage a claim that lacks a significant inventive concept.

Supreme Court Limits Federal Circuit’s Ability To Revise Claim Construction On Appeal

On January 20, 2015, the U.S. Supreme Court handed down its first patent decision of the current term, rejecting the U.S. Court of Appeals for the Federal Circuit’s long-standing practice of reviewing district court patent claim construction rulings, including subsidiary factual findings, without deference. The Supreme Court ruled that the Federal Circuit review all district court factual findings for “clear error,” even if the fact is nearly dispositive of the claim construction issue. The ultimate interpretation of the claim remains a legal conclusion, however, that the Federal Circuit will review de novo. Teva Pharmaceticals USA, Inc. v. Sandoz, Inc., Case No. 13-854 (Jan. 20, 2015). The slip opinion is available HERE. 

Background:

The interpretation of the asserted claims frequently is critical to the outcome of a patent dispute. The construction of disputed claim terms determines whether an accused product infringes the patent and is pivotal to most invalidity defenses. In Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996), the Supreme Court ruled that claim construction is an issue delegated to the trial judge, even when it involves fact issues, such as the meanings of terms of art recited in a claim. Markman did not expressly state whether those factual findings subsumed in a claim construction ruling are subject to de novo review (as normally would be the case for legal rulings) or to review for “clear error” (as normally would apply to judicial fact findings).  In Cybor Corp. v. FAS Techs., Inc., 138 F.3d 1448 (Fed. Cir. 1998) (en banc), the Federal Circuit held that it would review district court claim construction rulings to de novo, reviewing the record without deference. Critics of the Cybor policy, including several Federal Circuit judges, have pointed out that the approach is inconsistent with the prevailing claim construction analysis, which requires district courts to consider a factual record consisting of both “intrinsic” evidence (the patent claims, specification, and prosecution history) and “extrinsic” evidence (such as expert testimony, treatises, art references, and other facts outside the patent and prosecution).

Teva Pharmaceuticals v. Sandoz Dispute

The Supreme Court ruling comes in a case involving drug patents under the Hatch Waxman Act. Teva Pharmaceuticals owns several patents covering its Copaxone® multiple sclerosis drug. Sandoz and other generic drug companies filed Abbreviated New Drug Applications seeking approval to market a generic form of the drug. In response, Teva filed an infringement action under the Hatch Waxman Act. 35 U.S.C. § 271(e)(2).

Sandoz argued that a group of claims in the Teva patents were invalid as indefinite, because the term “molecular weight” appearing in the claims was subject to multiple incompatible meanings, and the patents themselves and the relevant prosecution histories did not resolve the ambiguity. The United States District Court for the Southern District of New York ruled that the claims were not indefinite. Among other things, the district court based its determination on its construction of the disputed term, relying on expert testimony presented by Teva that the term "molecular weight" was not ambiguous.

On appeal, the Federal Circuit, reversed, ruling that the claims were indefinite. The Federal Circuit reviewed the conflicting expert testimony Teva and Sandoz presented to the trial court on the question whether the term “molecular weight” was ambiguous. The Federal Circuit concluded that “on de novo review of the district court's indefiniteness holding, we conclude that Dr. Grant's testimony [introduced by Teva] does not save Group 1 claims from indefiniteness." Teva appealed to the Supreme Court.

Supreme Court Decision

In a 7-2 decision, the Supreme Court reversed the Federal Circuit, holding that it should have accepted the district court’s determination that “molecular weight” was not ambiguous unless the finding was clearly erroneous. Justice Breyer, writing for the majority, reasoned that Fed. R. Civ. P. 52(a)(6) mandates this more deferential standard of review and nothing in the Court’s jurisprudence or the rationales adopted by the Federal Circuit in Cybor permitted a different standard.

Breyer noted that although Markman gives the district judge sole responsibility to construe a patent claim, it recognizes that claim construction will require subsidiary factual findings. Analogizing a judge’s role in claim construction with a similar role in interpreting contracts or deeds, the Court observed that these subsidiary findings are subject to review for clear error, even when the ultimate interpretation of the documents receives de novo review. During the claim construction process, “courts may have to resolve subsidiary factual disputes. And . . . [Rule 52(a)(6)] requires appellate courts to review all such subsidiary factual findings under the ‘clearly erroneous’ standard.” Slip op. at 7.

The majority was not impressed with Teva’s policy argument that de novo review was important to ensure uniform interpretation of patents nationwide, preventing a “zone of uncertainty” that would discourage innovation. Instead, the Court stated that district court judges were reliable factfinders for scientific or technical disputes, noting that, “A district court judge who has presided over, and listened to, the entirety of a proceeding has a comparatively greater opportunity to gain that familiarity than an appeals court judge who must read a written transcript or perhaps just those portions to which the parties have referred.” Slip op. at 7-8. Moreover, it stated that inconsistent claim construction rulings by different trial courts would be infrequent and unlikely to cause uncertainty:

Neither the [Federal] Circuit nor Sandoz, however, has shown that (or explained why) divergent claim construction stemming from divergent findings of fact (on subsidiary matters) should occur more than occasionally. After all, the Federal Circuit will continue to review de novo the district court’s ultimate interpretation of the patent claims. And the attorneys will no doubt bring cases construing the same claim to the attention of the trial judge; those prior cases will sometimes be binding because of issue preclusion, see Markman, 517 U. S., at 391, and sometimes will serve as persuasive authority. Moreover, it is always possible to consolidate for discovery different cases that involve construction of the same claims. And, as we said in Markman, subsidiary fact-finding is unlikely to loom large in the universe of litigated claim construction.

Slip op. at 9.

Finally, the Court provided specific guidance on how to apply both review standards in claim construction appeals. First, in situations where the district court relies only on the intrinsic evidence (claim language, specification and prosecution history), its ruling is subject to de novo review. If the district court decision relies on factual underpinnings, however, such as evidence concerning the “background science or the meaning of a term in the relevant art during the relevant time period[,]” it should make specific factual findings and those findings are subject to review for clear error:

The district judge, after deciding the factual dispute, will then interpret the patent claim in light of the facts as he has found them. This ultimate interpretation is a legal conclusion. The appellate court can still review the district court’s ultimate construction of the claim de novo. But, to overturn the judge’s resolution of an underlying factual dispute, the Court of Appeals must find that the judge, in respect to those factual findings, has made a clear error. Fed. Rule Civ. Proc. 52(a)(6).

Slip op. at 13. The clear error standard applies even when the factual finding “is close to dispositive of the ultimate legal question of the proper meaning of the term in the context of the patent.” Id.

Applying this framework to the case on appeal, the Court held that the district court’s fact finding that a person skilled in the art would not have consider the “molecular weight” ambiguous was entitled to deference. “The Federal Circuit should have accepted the District Court’s finding unless it was “clearly erroneous.” Our holding today makes clear that, in failing to do so, the Federal Circuit was wrong.” Id. at 16.

Justice Thomas dissented, arguing that the entire claim construction issue was legal, notwithstanding any subsidiary facts, and should be subject to de novo review, just as a trial court’s interpretation of a statute is reviewed without deference. He added that he feared the ruling would lead to divergent decisions in patent cases, leading to uncertainty and, ultimately, suppression of innovation.

Although the Teva decision does not expressly alter the analytic framework used in claim construction proceedings since Phillips v. AWH Corp., 415 F.3d 1303 (Fed. Cir. 2005) (en banc), it is likely to introduce important strategic issues in patent cases, especially relating to conduct of claim construction proceedings. The extent of those changes will depend on how the Federal Circuit applies the decision in subsequent cases.

SCOTUS Readies For Oral Argument In Three Patent Cases

It’s autumn in Washington, DC and time for patent litigators’ thoughts to turn to Washington Redskins football and U.S. Supreme Court oral arguments. Following its recent practice of granting certiorari in a relatively large number of patent-related cases (by historical standards, at least), the SCOTUS has accepted three patent cases this term. Two cases will be argued next week. The third will be argued in early January. Here's a preview of all three cases:

Patent Eligibility. The most closely-watched case is Mayo Collaborative Services (d/b/a Mayo Medical Laboratories) v. Prometheus Laboratories, Inc. (No. 10-1153), an appeal from the U.S. Court of Appeals for the Federal Circuit considering the patent eligibility of medical processes. Prometheus Laboratories, Inc. owns U.S. Patent No. 6,355,623, entitled “Method of treating IBD/Crohn’s Disease and related conditions wherein drug metabolite levels in host blood cells determine subsequent dosage,” and a subsequent continuation patent, U.S. Patent No. 6,680,302. The patents claim methods for treating gastrointestinal diseases by optimizing dosages of thiopurine drugs. The drugs are effective in carefully controlled doses, but have toxic side effects at incorrect levels. The patents generally claim a process of optimizing the dosage level by “administering” a thiopurine drug, “determining” the level of resulting drug metabolites in the patient’s blood, and then increasing or decreasing the drug dosage where the metabolite level “indicates a need” to do so.

Prometheus sued Mayo Collaborative Services, a unit of the Mayo Clinic, for infringement of the patents. Mayo moved for summary judgment on the grounds that the claimed invention was not eligible subject matter under 35 U.S.C. § 101, because it attempts to cover a natural phenomenon – the correlation between thiopurine metabolite levels in a patient’s blood and drug effectiveness or toxicity.

The Mayo case already has been to the Supreme Court once, but was remanded without a decision on the merits. The Federal Circuit originally reversed the district court’s grant of summary judgment in favor of Mayo, holding that the claims satisfied the then-dispositive “machine or transformation test.” Prometheus Labs., Inv. v. Mayo Collaborative Services, 581 F.3d 1336 (Fed. Cir. 2009). That decision was on appeal to the Supreme Court when the Court decided Bilski v. Kappos, 561 U.S. ___, 130 S.Ct. 3218 (2010), broadening the eligibility of method inventions. As a result, the Supreme Court remanded the Mayo case for reconsideration. The Federal Circuit decided once again that the claims were patent-eligible. Prometheus Labs., Inv. v. Mayo Collaborative Services, 628 F.3d 1347 (Fed. Cir. 2010). The CAFC reasoned that Prometheus’ steps of “administering” and “determining” were transformative, because the thiopurine drug chemically reacted in the bloodstream to form the detectible metabolites. Thus, the claims did not cover the a naturally-occurring correlation per se, but a specific application of that phenomenon that resulted in drug dosage optimization.

Mayo will be the Supreme Court’s first opportunity to consider the limits of patent eligibility since its Bilski decision. Interest in the case is particularly keen because one Justice, Stephen Breyer, has been critical of a patent involving a step suggesting physician thought processes quite similar to the steps recited in the Prometheus patents. In a 2006 case, Laboratory Corp. of America Holdings v. Metabolite Labs., Inc., the Court heard argument on the patentability of claims directed to a method of diagnosing vitamin deficiencies in patients by “assaying” their blood for high levels of homocysteine (known to be associated with vitamin deficiencies) and then “correlating” a high level of homocysteine with vitamin deficiency in the patient. 126 S.Ct. 2921 (2006). The Court subsequently dismissed the writ of certiorari as improvidently granted, because the patent eligibility issue was not briefed or argued in the lower court. But Justice Breyer, joined by Justices Souter and Stevens (both now retired), dissented from the dismissal. He argued that the claimed method amounted to nothing more than “an instruction to read some numbers in light of medical knowledge.” Thus, he argued, the claims were directed to natural phenomena, per se, and were not patent-eligible. The same reasoning may cause Breyer to be skeptical of Prometheus’ claims.

The Mayo case will be argued on December 7.

Counterclaims Under Hatch-Waxman Act. In addition to Mayo, two other patent-related appeals will be argued this term. In Caraco Pharmaceutical Labs. Ltd. v. Novo Nordisk A/S, No. 10-844, the Supreme Court considers when a generic drug company may bring a counterclaim against a pioneer drug manufacturer under the Drug Price Competition and Patent Term Restoration Act of 1984, more commonly known as the Hatch-Waxman Act. Under that Act, a drug manufacturer lists patents which cover its drug or FDA-approved uses of the drug in the FDA’s Orange Book. If a generic company files an Abbreviated New Drug Application (“ANDA”) seeking approval to market a generic equivalent before the patents expire, it must deliver a “Paragraph IV” certification asserting that each patent is not infringed, invalid, or unenforceable. 21 U.S.C. § 355(j)(2)(A)(vii). Such a certification is an act of infringement, 35 U.S.C. § 271(e)(2), permitting the pioneer drug company to file suit in federal district court. In order to prevent pioneer drug companies from deterring generic applications by listing patent information that is too broad in light of the patents’ claimed subject matter, the Act permits a generic drug company to assert a counterclaim if a patent listed in the Orange Book does not claim either “(aa) the drug for which the [FDA] application was approved; or (bb) an approved method of using the drug[.]” 21 U.S.C. § 355(j)(5)(C)(ii)(I).

In this case, the pioneer drug company, Novo Nordisk, owns a patent covering the brand drug Prandin®, which is approved for three methods for treating diabetes mellitus. Novo Nordisk listed the patent in the Orange Book as covering one method. In fact, the patent claims covered one of the other approved methods. Novo Nordisk asserted that Caraco infringed the patent by filing an ANDA for the listed, but not patented, method. Caraco filed a counterclaim seeking correction of the Orange Book information, and the district court granted summary judgment directing Novo Nordisk to amend the listing. In a 2-1 split decision, however, the Federal Circuit reversed. It ruled that Caraco could not assert a counterclaim because the Orange Book did list “an approved method of using” Prandin (just not the one that was covered by the patent). The dissenting judge argued that the majority’s construction of the law was too “crabbed” and deviated from Congress’ intent to prevent manipulation of the Orange Book listings.

The Supreme Court will hear argument in Caraco on December 5, 2011.

Scope Of Evidence In District Court BPAI Challenge. On January 9, 2012, the Supreme Court is scheduled to hear oral argument in Kappos v. Hyatt, No. 10-1219, considering the availability of evidence in appeals from the U.S. Patent and Trademark Office’s Board of Patent Appeals and Interferences (“BPAI”) to federal district courts. Under the Patent Act, a patent applicant that loses its administrative appeal to the BPAI has two options for appellate review. First, it can appeal directly to the Federal Circuit. Second, it can file a civil action in federal district court under 35 U.S.C. §145, seeking an order requiring the USPTO to issue a patent on the application. The applicant choosing the district court option subsequently may appeal an adverse court result to the Federal Circuit. This district court option has a long history, dating back to the 1836 Patent Act. Section 145 states that in the civil action, the district court “may adjudge that such application is entitled to receive a patent for his invention . . . as the facts in the case may appear[.]”

In Hyatt, the examiner rejected the applicant’s pending claims for obviousness. During the ensuing administrative appeal, the BPAI reversed the obviousness rejection, but rejected several claims based on lack of written description. 35 U.S.C. § 112 par. 1. Evidence to rebut that rejection was available to Hyatt, but he did not submit it to the BPAI. After the BPAI’s final ruling, Hyatt filed a civil action under Section 145 and, in that action, attempted to introduce the evidence he failed to submit during the administrative appeal. The district court excluded the evidence.

Hyatt then appealed to the Federal Circuit. In an en banc ruling, the appeals court ruled that a plaintiff in a Section 145 action may introduce any evidence in support of its request for issuance, even though the evidence was not before the BPAI. Hyatt v. Kappos, 625 F.3d 1320 (Fed. Cir. 2010)(en banc). The USPTO argued for a different rule that would preclude admission of new evidence in the district court action unless the applicant could not reasonably have provided the evidence to the USPTO in the first instance. Supreme Court will be tasked with determining the correct standard for admitting new evidence.

Bilski v. Kappos: Supreme Court says, "No comment"

U.S. Supreme Court Chief Justice John Roberts has famously repeated the aphorism that, if it is not necessary that an issue be decided, it is necessary that it not be decided. Such is the lesson of Bilski v. Kappos. Apparently taking the Chief Justice's counsel to heart, the Supreme Court has issued an undoubtedly wise but nevertheless perplexing decision that is likely to make patent attorneys relieved but confused ... and leave everyone else simply confused.

As every patent law practitioner on earth has no doubt learned by now, the Supreme Court's nine Justices decided that Bilski's claimed invention is an "abstract idea," and therefore not patentable under 35 U. S. C. §101, Gottschalk v. Benson, Parker v. Flook, and Diamond v. Diehr. As to all other questions, however, the Court has delivered a resounding "No comment."

Conventional wisdom had already guessed that the Court would rule Bilski's claimed process not subject to patent. That said, all were waiting to hear whether the Circuit Court's "machine or transformation test" is viable, and whether business methods, software, and biotech inventions may be patented. To which the nine Justices replied, in short: Maybe, maybe not.

Authored by Justice Kennedy, the Court's majority opinion is a lesson in equivocation:

ABSTRACT IDEA: Seemingly the only issue on which the majority does not hesitate is the conclusion that Bilski's claimed process of hedging risk is an unpatentable abstract idea. Not even "limiting an abstract idea to one field of use or adding token postsolution components" can make it patentable. BUT, as Justice Stevens and three other Justices complain in their concurrence, the Court "never provides a satisfying account of what constitutes an unpatentable abstract idea."

BUSINESS METHODS: The majority suggests that certain business methods may be patentable: "[T]he Patent Act leaves open the possibility that there are at least some processes that can be fairly described as business methods that are within patentable subject matter under §101." In fact, under 35 U. S. C. §273(b)(1), "federal law explicitly contemplates the existence of at least some business method patents." BUT: "[W]hile §273 appears to leave open the possibility of some business method patents, it does not suggest broad patentability of such claimed inventions." And "even if a particular business method fits into the statutory definition of a “process,” that does not mean that the application claiming that method should be granted."

MACHINE-OR-TRANSFORMATION: Scolding the Federal Circuit for the narrowness of its machine-or-transformation test, the Court nevertheless admits that this test is helpful: "This Court’s precedents establish that the machine-or-transformation test is a useful and important clue, an investigative tool, for determining whether some claimed inventions are processes under §101." BUT: "The machine-or-transformation test is not the sole test for deciding whether an invention is a patent-eligible 'process.'" (emphasis added) The Court reasons that new or unforeseen technologies might require standards of evaluation other than the machine-or-transformation test. Therefore the Court interprets §101 to be a "dynamic provision" that may require "new inquiries." What are these new tests? Who knows? The Court offers no suggestions.

PATENTABLE PROCESSES, SOFTWARE PATENTS, BIOTECH, ETC.: Because of unforeseen consequences, the Court refused to decide any issue other than the case before it or to rule on whether "technologies from the Information Age should or should not receive patent protection." (All those who had feared a broad pronouncement disqualifying software or other new-tech patents can now breathe a sigh of relief.) It's similarly futile to look for specific guidance as to patentable processes: "The Court ... need not define further what constitutes a patentable 'process,' beyond pointing to the definition ... provided in §100(b) and looking to the guideposts in Benson, Flook, and Diehr."

There is, of course, quite a good rationale behind the Court's position; the majority is deferring to Congress's aim of facilitating innovation. According to the Justices, §101's "expansive terms" and "permissive approach to patent eligibility" indicate the legislature's intent to give "a liberal encouragement" to innovation. The Federal Circuit's exclusive and artificial machine-or-transformation standard imposes upon the statute "limitations and conditions which the legislature has not expressed."

Again, almost no one expected the Court to uphold Bilski's patent. The only aspect of this ruling that seems to have surprised anyone is its vagueness. Given that the Court rejects Bilski's business method as an "abstract idea," it would have been helpful if the Court had made more effort to define that term. One can hazard a guess that cases involving claimed business methods will revolve primarily around this question in the near future.

As Tom Goldstein mused diplomatically on the Supreme Court blog, "the breadth of today's ruling is an open question." Thus Bilski v. Kappos, the most anticipated patent law case in recent history went out not with a bang, but with a whimper. No sweeping pronouncements and few definitive declarations were in evidence. In fact, the majority opinion may raise more questions than it answers. This, of course, can only work to the benefit of most patent attorneys, who make a living from the continued raising of such questions.