

High Court draws line on attempt to patent law of nature through artful drafting - grellas
http://www.groklaw.net/article.php?story=20120320121216253

======
lutorm
That's one of the most sane conclusions to a patent case I've seen in a long
while. It's always baffled me how you can patent naturally occurring DNA just
because you figured out how to sequence it. By that standard, Galileo could
have patented the craters on the Moon and the Galilean satellites. And whoever
invented the microscope could have patented the cell. Columbus could have
patented America.

A _discovery_ is not an _invention_.

~~~
Daniel_Newby
This is an _insane_ decision. The drug in question is very niche, so
performance data is scant. Deciding on a therapeutic window is a creative
judgement call, not an observation of a fact of nature. Moreover the choice of
number of molecules per red blood cell is unconventional and therefore also
creative.

~~~
andybak
Do either of those facts merit patentability?

creative != novel and non-obvious. It's a much lower bar. And that is without
considering the 'machine and transformation' side of things.

------
moldbug
It's well worth reading patent courtesan Gene Quinn as his head explodes:

 _How long will it take the Federal Circuit to overrule this inexplicable
nonsense? The novice reader may find that question to be ignorant, since the
Supreme Court is the highest court of the United States. Those well acquainted
with the industry know that the Supreme Court is not the final word on
patentability, and while the claims at issue in this particular case are
unfortunately lost, the Federal Circuit will work to moderate (and eventually
overturn) this embarrassing display by the Supreme Court. This will eventually
be accomplished the same as it was after the Supreme Court definitively ruled
software is not patentable in Gottschalk v. Benson, and the same as the ruling
in KSR v. Teleflex will be overruled. I have taken issue with Chief Judge
Rader’s statements that nothing has changed in Federal Circuit jurisprudence
as a result of KSR, which is not technically true. What is true, however, is
that the Federal Circuit continues to refine the KSR “common sense test,”
narrowing the applicability in case after case and tightening the ability for
“common sense” to be used against an application. We are almost 5 years post
KSR and there is still a lot of work left to be done by the Federal Circuit to
finally overrule the Supreme Court’s KSR decision. It took almost 10 years to
overrule Gottschalk v. Benson, so we are likely in for a decade of work to
moderate the nonsense thrust upon the industry this morning._

 _Indeed, Breyer’s decision is the most intellectually dishonest decision I
have ever read, which is saying a lot given the utter contemptuous
understanding of patent law displayed by the Supreme Court over the years. It
is truly troubling that all 9 of the Justices concurred in what history will
regard as one of the worst decisions in the patent space EVER!_

 _Yes, Congress will be asked to step in and rectify this absurd ruling, and
they should. Knowing how the legislative branch operates I cringe at the
thought of Congress coming to the rescue. The only thing that gives me solace
is that the industries summarily executed this morning have an A+ lobbying
game, which in Washington, DC means everything._

([http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
pr...](http://www.ipwatchdog.com/2012/03/20/supreme-court-mayo-v-
prometheus/id=22920/))

The worst of it is: Quinn is exactly right (about the Federal Circuit, in
every way an organ of the patent lobby). The Supreme Court is simply not in
control of our foul, meretricious patent bar. (Of course, if they wanted to
start getting in control of it, they're doing it right.)

~~~
nl
That link just made _my_ head explode:

 _Did all nine of the Supreme Court Justices just conflate patent eligibility
with novelty and non-obviousness? Yes they did! But it gets worse — they
explicitly admitted doing so!_

and

 _The Supreme Court also further specifically ignored the Government’s
objective, reasonable and until today correct assertion that any step beyond a
statement of a law of nature transforms the claim into one that displays
patent eligible subject matter_

I had to double-check if this was some kind of parody site. Perhaps this could
be an extension to Poe's Law?

~~~
Natsu
> Did all nine of the Supreme Court Justices just conflate patent eligibility
> with novelty and non-obviousness? Yes they did! But it gets worse — they
> explicitly admitted doing so!

He's mad because he just got _Flook_ ed[1].

Some patent lawyers have gotten too attached to the trick they've been using
for decades now where they could just split up the section 101, 102 & 103
obligations to meet them each by parts, and consider anyone confused who
supposes that the patent as a whole ought to live up to each of those
obligations. Note that word "ought" though: for a long time, the courts were
more than happy to let them do that. If he's dismayed, it's because the
Supreme Court has the power to turn that particular ought into an is.

But this led to an odd state of affairs where so many bad patents issued where
the only novelty they offered wasn't actually patentable and the patentable
subject matter had already been invented.

[1] That was a bad pun. But this ruling honestly seemed, at least to me, like
a return to <https://en.wikipedia.org/wiki/Parker_v._Flook> which is quoted
extensively.

~~~
ScottBurson
Thank you for this. I was trying to understand where Quinn was coming from.
Your explanation makes perfect sense.

