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Supreme Court Limits Patents Based On Laws of Nature

Posted by Unknown on from the there-goes-my-falling-off-a-bridge-patent dept.

New submitter sed quid in infernos writes "The Supreme Court issued a unanimous opinion yesterday holding that 'to transform an unpatentable law of nature into a patent-eligible application of such a law, a patent must do more than simply state the law of nature while adding the words "apply it."' The Court invalidated a patent on the process of adjusting medication dosage based on the levels of specific metabolites in the patient's blood. The opinion sets forth a process for determining patent eligibility for patent claims that include a law of nature. The court wrote that the "additional features" that show an application of the law must "provide practical assurance that the [claimed] process is more than a drafting effort." This language suggests that the burden will be on the patentee to prove that its limitations are more than patent attorney tricks.'"

41 of 173 comments (clear)

  1. Patent by SJHillman · · Score: 5, Funny

    So I can't patent my method of not falling off the Earth through application of gravity?

    1. Re:Patent by g0bshiTe · · Score: 3, Funny
      You forgot something.

      Method of not falling off the Earth through application of gravity, apply it.

      3M, we don't make the patent, we make it better.

      --
      I am Bennett Haselton! I am Bennett Haselton!
    2. Re:Patent by Jason+Levine · · Score: 2

      What if I add "using computers" or "using The Internet"? Can I apply for a patent for "Method of not falling off the Earth through the application of gravity and The Internet"?

      --
      My sci-fi novel, Ghost Thief, is now available from Amazon.com.
    3. Re:Patent by osu-neko · · Score: 5, Insightful

      So I can't patent my method of not falling off the Earth through application of gravity?

      Alas, you can. This just means it won't hold up in court, not that you can't patent it, threaten other people, incur huge legal costs and tie things up for years making a nuisance of yourself until the money from your investors runs out, at which point you just declare bankruptcy, dissolve the corp that takes all the blame and walk away from the mess with the income you earned during the time.

      --
      "Convictions are more dangerous enemies of truth than lies."
    4. Re:Patent by GameboyRMH · · Score: 2

      Method of not falling off the earth using gravity and a mobile device

      Mobile patent, trumps both "on a computer" and "on the Internet." B-)

      --
      "When information is power, privacy is freedom" - Jah-Wren Ryel
    5. Re:Patent by SuperAlgae · · Score: 5, Insightful

      Curious that you left out Apple. After all, they took an "unlock" slider, which already existed in physical form on mobile phones and other devices, and patented the idea of putting that "on screen". I'm not saying that other companies would not or have not applied for similar patents, but Apple has crowned itself the king of obvious patents with its aggressive pursuit of that one.

    6. Re:Patent by SuperAlgae · · Score: 5, Informative

      http://www.phonescoop.com/articles/article.php?a=62&p=1095&g=1256&h=14868

      This pic is from 2006. Notice the red and black slider/switch on the side of the phone.

    7. Re:Patent by wintercolby · · Score: 2

      I had a Palm Treo that had a physical slide switch to lock and unlock...

      --
      Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
    8. Re:Patent by belg4mit · · Score: 2

      That's BSAF, not 3M

      --
      Were that I say, pancakes?
    9. Re:Patent by hairyfeet · · Score: 2

      Don't forget the "its a rounded square" patent, gotta love that one. WTF do you think you are gonna make a tablet shaped like? A triangle? You kinda have to build those things around the screen which is...drumroll...a rounded square!

      sadly as we have seen with GMOs they WILL get around this, soon i wouldn't be surprised if people's DNA ended up covered by patents. Our entire patent and copyright system is royally fucked and needs to be tossed out and a new system built from the ashes because this one? All it does is reward entrenched multinationals who have the money to keep a law dept just for trolling. in the end i believe Apple, MSFT, and Google (with a locked down TiVo'ed Android) will split the web between them, and Monstanto will own anything biological. I have seen the future folks, and its some scary shit let me tell you. Hope you can become one of the top 5% because otherwise you are SOL.

      --
      ACs don't waste your time replying, your posts are never seen by me.
  2. Cool ... by gstoddart · · Score: 5, Interesting

    Does this also cover patenting genes too?

    Because I've never understood how you can patent a gene someone already had.

    --
    Lost at C:>. Found at C.
    1. Re:Cool ... by NatasRevol · · Score: 4, Interesting

      Which would be very interesting when applying it to plant species. I'm betting Monsanto might have an issue or two with that.

      --
      There are two types of people in the world: Those who crave closure
    2. Re:Cool ... by X0563511 · · Score: 5, Insightful

      Too bad for Monsanto. Perhaps a business model relying on the patenting of things that shouldn't be patentable was a dodgy idea to start with?

      --
      For large sets, this will be our guide even unto death, for the LORD will work for each type of data it is applied to...
    3. Re:Cool ... by NatasRevol · · Score: 2

      Definitely. But big money buys a lot of things, including politicians.

      --
      There are two types of people in the world: Those who crave closure
    4. Re:Cool ... by NatasRevol · · Score: 3, Informative

      Not according to Monsanto. You can't use the genes (seeds) even if they blew into your farm.

      http://www.techdirt.com/articles/20091214/0856327337.shtml

      --
      There are two types of people in the world: Those who crave closure
    5. Re:Cool ... by gstoddart · · Score: 5, Informative

      I'm neither genetic engineer nor patent lawyer, but my guess would be that what is patentable here is transporting the gene from one species to another one.

      Not always. This, this, this, this ... all of them indicate that merely identifying the gene allows them to be patentable.

      Not create. Not move from one species to another. Merely identifying the existence of it.

      Sorry, but in my mind they're naturally occurring and have no business being patented.

      --
      Lost at C:>. Found at C.
    6. Re:Cool ... by DarwinSurvivor · · Score: 2

      per cell or per strand?

    7. Re:Cool ... by realisticradical · · Score: 3, Insightful

      Interestingly Monsanto might have more to gain from the expiration of the RoundupReady patent than from the profits of the patent itself. Remember, Monsanto sells the weed killer Roundup (glyphosate). Once the RoundupReady trait goes off patent farmers will be able to buy the glyphosate resistant seeds from generic sources or save them year to year. If roundup resistant crop use increases so does roundup use.

      I sort of think of it the same way as if cigarette companies came up with a pill that gave you the ability to smoke without ever getting cancer. In terms of profit they'd do better to give away the pills and sell more cigarettes.

    8. Re:Cool ... by oxdas · · Score: 2

      The cancer curing genes could still be patentable if the method for using or purifying them was novel. In this case though, it would be the process and not the genes that would get the patent.

      As for the bacteria lamp, if the new gene was just the splicing of two naturally occurring genes using standard techniques, would it still qualify?

    9. Re:Cool ... by wintercolby · · Score: 5, Informative

      While that may be profitable for Monsanto, it is horrible for our ecosystem. RoundupReady are genetically modified using e. coli bacteria to insert the genetic material. In order to verify that the genetic modification is successful, they also include the gene for penicillin immunity. Now we have massive numbers of organisms with the gene sequence necessary to be immune to penicillin, and more producers of GMO seeds means more genetic modifications in the wild. Monsanto has already come out with 2,4D (a component of agent orange) immune seed to prepare for the expiration of RoundupReady patents. It's also worth mentioning that a significant number of common weeds are immune to Roundup now.

      --
      Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
    10. Re:Cool ... by wintercolby · · Score: 4, Insightful

      If you are correct then this means that the fight over the patent on the gene that causes breast cancer is likely to result in an invalidated patent when the Supreme Court takes the case.

      --
      Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
    11. Re:Cool ... by idontgno · · Score: 3, Informative

      Quote from third link in TFS:

      Whither Myriad: Although no action has been taken yet, I presume that the Supreme Court will now vacate and remand the pending Myriad case with instructions to the Federal Circuit to reconsider its holding that isolated human DNA is patentable. Following Mayo, the court could logically find that the information in the DNA represents a law of nature, that the DNA itself is a natural phenomenon, that the isolation of the DNA simply employs an isolation process already well known and expected at the time of the invention, and ultimately that the isolated DNA is unpatentable because it effectively claims a law of nature or natural phenomenon. One distinguishing point is that Prometheus claimed a process while Myriad claims a composition of matter. As we have seen in recent cases, the Federal Circuit already largely rejects formalistic distinctions between process and composition claims. Here, that distinction is further minimized by the reality that the claimed DNA is functionally characterized by the already well known process of isolating human DNA.

      (Emphasis mine.)

      Of course, that's just an observer's speculation, but very logical IM(A)HO*. We can hope that logic will continue to prevail.

      *In My Amateur Honest Opinion

      --
      Welcome to the Panopticon. Used to be a prison, now it's your home.
    12. Re:Cool ... by X0563511 · · Score: 3, Insightful

      Why the hell did they choose to test with penicillin immunity? Couldn't they have just altered the color response of the plant or something?

      --
      For large sets, this will be our guide even unto death, for the LORD will work for each type of data it is applied to...
    13. Re:Cool ... by wintercolby · · Score: 2, Insightful

      I take everything I said about the Supreme court doing the right thing back. When other justices recuse themselves over minor conflicts of interest, when it comes to Monsanto, Clarence Thomas fails to see any conflict at all.

      --
      Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
    14. Re:Cool ... by wintercolby · · Score: 3, Informative

      I found this article from 1998 about Novartis and maize grown with antibiotic immunity, as well as this article on Monsanto Roundup Ready cottonseed, as well as this article on GMO safety directly from Monsanto which specifically states that they build in antibiotic resistance.

      --
      Most ignorance is vincible ignorance. We don't know because we don't want to know. --Aldous Huxley
    15. Re:Cool ... by rodarson2k · · Score: 3, Informative

      To do genetic engineering, you HAVE to use a selection marker. When you insert a gene, you get something like a 1 in a million success rate. You need a way to kill off everything that wasn't a success, or you'll never find your needle in the haystack.

      Everyone who does genetic engineering uses ampR as a selection marker, and no one says thing one about it. I wouldn't be surprised if the FDA REQUIRES you to use ampR as your selection marker in order to pass their crazy safety requirements - in fact, i looked it up, and while it's not a requirement, it's fully sanctioned. No one says "hey wait, what about penicillin resistance?" Why? Well, there are a bundle of reasons. To quote the FDA:

      a) Danger of eating food with genetic modifications: None
      b) Potential to transfer genetic modifications to gut bacteria: None in the absence of selective pressure, nearly none in the presence.
      c) Potential to transfer genetic modifications to soil bacteria: None in the absence of selective pressure. Additionally, almost every bacteria that you could possibly transfer the gene to already has it. Seriously, every bacteria sequenced has resistance genes to almost every antibiotic out there, they're just not expressed very frequently. It's the way things are, because plants and fungi have been using antibiotics for millennia.

      The use of antibiotic resistance genes as a selection marker is not a reason to hate Monsanto.

      There are plenty of others.

  3. nothing and everything's a law of nature by Anonymous Coward · · Score: 2, Interesting

    Whether we decide something to be a law of nature or a law of man developing as part of nature is a matter of drawing an arbitrary line.

    This is why all notions of property are arbitrary.

    1. Re:nothing and everything's a law of nature by dtmos · · Score: 4, Funny

      This is why all notions of property are arbitrary.

      Could you give me my wallet, there in your pocket?

    2. Re:nothing and everything's a law of nature by Crag · · Score: 4, Insightful

      This is why all notions of property are arbitrary.

      Could you give me my wallet, there in your pocket?

      Will you do the same for me later? If so, yes, you may have the wallet in my pocket.

      Just because you and I currently have an agreed on notion of property which says that the wallet in my pocket is mine doesn't mean we can't re-negotiate it right now, if it suits us both. If anyone could take my stuff at any time I might not have any food to eat at the end of the day. But if I can take anyone else's stuff too (without them minding), then that's not a problem any more.

      I still prefer our current model (the wallet in my pants is mine) because I don't know who you are and don't trust you to support me when I need it, but I do share with the people I trust. The concept of property is not a fundamental trait of the universe. It is something some animals develop to optimize resource management. It is something which could always be improved. Its boundaries are negotiable and arbitrary.

  4. Swinging Sideways Review? by Bob9113 · · Score: 4, Interesting

    Does this mean we can finally get a review for the patent on swinging sideways on a swing? The patent in question does not merely add "apply it" to suspended mass behavior -- it adds "apply it, but sideways."

    --
    Stop-Prism.org: Opt Out of Surveillance
  5. Hrm... by Artraze · · Score: 2, Insightful

    I have some pretty mixed feelings about this. While it's true that there are some bad patents in this vein, I don't know if I'd consider them even a substantial portion of it. The trouble is that just because something is a law of nature doesn't make it 'obvious', and actually discovering that law can take a considerable amount of research. For example: every chemical process ever invented. Forget patenting extractive distillation methods. Hell, you could look at the lead chamber process as unpatentable because lead's role in the process (despite being a hugely important innovation) follows from simple natural laws.

    Now, I'm really glad to see the supreme court start to take a more critical approach to IP, but unless there's something I'm missing here this decision could really have some bad side effects.

    1. Re:Hrm... by Jonner · · Score: 3, Insightful

      If you mean there could be "bad side effects" for companies whose business model is based on milking patents as long as possible rather than continually trying to out-innovate their competition, I'm sure you're right.

    2. Re:Hrm... by Anonymous Coward · · Score: 5, Insightful

      The trouble is that just because something is a law of nature doesn't make it 'obvious', and actually discovering that law can take a considerable amount of research.

      So? People do a considerable amount of research and discover interesting things all the time. Why does that mean there should be some complicated government system dictating what everyone else can do with that knowledge even if they independently figure out the same thing?

      How does an artificial monopoly on facts of nature benefit society? If you just want to give people money for research, why not just do it directly instead of this insanely complex system?

  6. Goodbye software patents? by betterunixthanunix · · Score: 2

    Let's see...computer programs are proofs of mathematical statements (see: Curry-Howard correspondence)...so does this ruling finally invalidate software patents? Or are we still going to have software patents, and just demand that they not cover statements that are "obvious" to some judge?

    --
    Palm trees and 8
  7. Re:Laws of Nature? by Opportunist · · Score: 2

    There are quite a few patents that cannot be implemented yet because they depend on some material the physical properties of which simply do not exist. They slipped through the review process, sadly, but they're there because someone thought that at some point in the future someone might come up with said material and then they want to cash in.

    So yes, there are patents that are based on magical materials. Close enough to magic if you ask me.

    --
    We used to have a Bill of Rights. Now, with the rights gone, all we have left is the bill.
  8. Re:big money buys politicians by TaoPhoenix · · Score: 2

    I want to play the Collectible Card Game about Politicians! You can spend Manna/Money, you can tap and un tap your "political resources".

    Let's hear it for Wizards of the Coast!

    --
    My first Journal Entry ever, in 8 years! http://slashdot.org/journal/365947/aphelion-scifi-fantasy-horror-poetry-webzine
  9. Math and software patents by Weaselmancer · · Score: 5, Interesting

    Math is the first thing I thought of when I read the headline. Math!

    How many software patents are simply applied math?

    We may have found a slippery slope that works in our favor for once.

    --
    Weaselmancer
    rediculous.
    1. Re:Math and software patents by NortySpock · · Score: 2

      How is this different than saying something like: "Mechanical Engineering is only applied physics, and physics is only applied mathematics, and mathematics are natural laws*, so you can't patent that" ?

      * I've heard that disputed on the basis that mathematics relies on assumptions (axioms) and do not in and of themselves represent natural laws.

  10. Re:patenting discoveries? by denis-The-menace · · Score: 3, Insightful

    Obtaining a patent on a gene (not the process used to find the gene)
    is akin to getting a patent on finding a new animal species, finding buried city or dinosaur.

    I thought you could not patent facts?

    --
    Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
  11. Why we need this law by Ukab+the+Great · · Score: 2

    The anti-evolution people could patent evolution and then claim any teaching of it to be infringement.

  12. I CHANNEL FIREBALL YOUR IDEA FOR 20 by TiggertheMad · · Score: 3, Interesting

    you can tap and un tap your "political resources".

    With more than a little irony, I'd like to mention that 'tapping' cards was patented by WoTC already: Tap (gaming)

    Patents: Advancing the state of the American technology one red mana at a time..

    --

    HA! I just wasted some of your bandwidth with a frivolous sig!