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Supreme Court Limits Patents Based On Laws of Nature 173

Posted by Unknown Lamer
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.'"
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Supreme Court Limits Patents Based On Laws of Nature

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  • Patent (Score:5, Funny)

    by SJHillman (1966756) on Wednesday March 21, 2012 @12:12PM (#39429397)

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

    • Re:Patent (Score:4, Funny)

      by g0bshiTe (596213) on Wednesday March 21, 2012 @12:21PM (#39429533)
      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.

    • 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"?

      • 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-)

    • by matrim99 (123693)
      You can, but you need to add "while using a computer" or "while connected to the Internet" in order for the patent to be granted with minimal review.
    • Re:Patent (Score:5, Insightful)

      by osu-neko (2604) on Wednesday March 21, 2012 @12:38PM (#39429815)

      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.

    • I can image Microsoft or Motorola pateting this "...while using a mobile device".

      • Re:Patent (Score:5, Insightful)

        by SuperAlgae (953330) on Wednesday March 21, 2012 @01:38PM (#39430867)

        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.

        • Not to defend Apple, but I've never come across a mobile phone that you unlock using a physical slider. The nearest I can think of are slide phones where you pull (or rather push with your thumb) the phone apart, which is made of two parts similar to the two parts of a flip phone.)
        • by hairyfeet (841228)

          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

    • Damn right, that was my first thought...method of exchanging gases by diffusion being the next best thing. Breathe and I'll sue!

    • by msauve (701917)
      Method and application for use of unique properties of the Higg's bosun to mitigate fictitious centrifugal forces on the surface of a rotating spheroid. Also claimed, said method applied to Internet, mobile, and commercial uses.
      • Meh. I have a better one: "Method and application for use of the Higgs Boson to generate speculative stories which are published on technical news sites to derive ad revenue."
  • Cool ... (Score:5, Interesting)

    by gstoddart (321705) on Wednesday March 21, 2012 @12:12PM (#39429403) Homepage

    Does this also cover patenting genes too?

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

    • Re:Cool ... (Score:5, Interesting)

      by NatasRevol (731260) on Wednesday March 21, 2012 @12:26PM (#39429599) Journal

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

      • Re:Cool ... (Score:5, Insightful)

        by X0563511 (793323) on Wednesday March 21, 2012 @12:29PM (#39429649) Homepage Journal

        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?

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

        • by denis-The-menace (471988) on Wednesday March 21, 2012 @01:12PM (#39430425)

          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?

        • Re:Cool ... (Score:4, Insightful)

          by realisticradical (969181) on Wednesday March 21, 2012 @01:13PM (#39430433) Homepage
          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.
          • Re:Cool ... (Score:5, Informative)

            by wintercolby (1117427) <winter.colby@nospam.gmail.com> on Wednesday March 21, 2012 @01:29PM (#39430695)
            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.
          • True, but the glyphosate patent ran out back in 2000. RoundupReady has been mostly a marketing strategy (in the title, for sure) to still encourage buying glyphosate in its brand-name form. So, when that patent runs out, Cargill or whoever can make "Brand-Name"Ready crops, and package glyphosate under "Brand-Name", thus following the same plan and ultimately cutting into Monsanto's profits.

            [off topic] I remember the year I spent studying Applied Plant Science was also my most politically-active year, b
            • by hairyfeet (841228)

              Uhhh...wouldn't that be a trademark and NOT a patent? I mean i'm sure any patents they had for John Deere tractors ran out long ago but because john Deere is a trademark i still can't make a John Deere tractor. i bet Roundup is a trademark as is Roundup ready.

              As for the clueless above that are saying "What is the big deal if a few weeds become roundup resistant? let me answer with just one word...Kudzu [yahoo.com]. Weeds are damned hard to kill as it is, and can grow damned near anywhere so taking away another weapon

      • by dan828 (753380)
        Well, if you could (rather loosely) interpret gene patents or even new species with new genes placed in them as akin to software patents or copyrights.
    • 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. Which by itself is creepy enough if you ask me that it shouldn't enter my plate.

      • Re:Cool ... (Score:4, Informative)

        by NatasRevol (731260) on Wednesday March 21, 2012 @12:36PM (#39429771) Journal

        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 [techdirt.com]

        • by ArcherB (796902)

          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 [techdirt.com]

          Your linked article says nothing about "You can't use the genes (seeds) even if they blew into your farm"

          I found several links referring to organic farmers suing Monsanto fearing that genetically modified pollen may contaminate organic crops, but nothing about Monsanto suing farmers who saved seed from a non-Monsanto crop that had been contaminated by a nearby Monsanto grown one.

          Not disagreeing with you. I've just read that several times with no legitimate links to back it up.

      • Re:Cool ... (Score:5, Informative)

        by gstoddart (321705) on Wednesday March 21, 2012 @12:42PM (#39429901) Homepage

        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 [themarknews.com], this [nationalgeographic.com], this [discovery.com], this [theregister.co.uk] ... 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.

      • by dan828 (753380)
        Even so, much of that technology was developed by seeing such things actually happen in nature. There is a good amount of junk that exists in your own DNA that came from outside sources. Look up endogenous retroviral insertions some time for some examples.
    • Does this also cover patenting genes too?

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

      Nope - that case, Myriad Genetics and the BRCA1 gene, is still going on.

      • Re:Cool ... (Score:4, Informative)

        by idontgno (624372) on Wednesday March 21, 2012 @01:40PM (#39430931) Journal

        Quote from third link in TFS: [patentlyo.com]

        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

    • Does this also cover patenting genes too?

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

      It would seem the SCOTUS would allow gene patents, provided they do something beyond what is already known and is sufficiently significant- so that splicing a gene from plant X onto Y at point Z to give it great protection from A' may be patentable; but it also seems that the idea of splicing genes to give greeter resistance would not be nor would splicing plant X' onto Y at point Z to give it great protection from A' necessarily violate the first patent. Then, IANAL so I 'm probably wrong on all counts.

    • Re: (Score:2, Interesting)

      by jellomizer (103300)
      The question may fall into discovering genes that already exist, vs. New ones created.

      Lets say I spend billions of dollars on a bactera that I can put in glass container that will light up like a 100 watt bulb while feeding it C02, I would want to patent those genes that I created so I can make profit off of bacteria lightbulbs. However if you just found the genes that cured cancer that some people had, and giving others with cancer that gene, I don't think you should be able to patent something you discov
      • by oxdas (2447598)

        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?

    • by apcullen (2504324)
      FTFA:

      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, ...

      Apparently there's a case about this issue in litigation.

    • You can patent a use of the gene. So long as the use is an inventive step. One that did not exist prior to your patent. So combining the gene with a virus to create a cure is patentable. (provided that step is not obvious to one skilled in the art) Simply using existing techniques to identify the gene and using medical knowledge to propose a known treatment is not patentable.
      • That's the part that annoys me. Putting genes into organisms with viruses is bog standard and has been for a long time. That step IS obvious to one skilled in the art. It's even obvious to me, and I am not skilled in the art. I am familiar enough that I've injected those modified viruses into other organisms, but not so skilled that I was the guy making the viruses.

    • I don't know, but I do know that Monsanto and others who could make nearly unlimited amounts of money from patents on DNA sequences already have very deep pockets and will do anything they can to make sure they can make monopolies.
  • by Anonymous Coward

    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.

    • by mark-t (151149)

      all notions of property are arbitrary.

      I would disagree with that assertion.

      Your desires, your dreams, your feelings, and all of your own thoughts are your own property. Although external and perhaps unusual forces may keep you from taking action with respect to any of them, they are nonetheless still yours.

      Even if these things were only put into you by brainwashing, or by subliminal or even direct suggestion, they are still fully yours, and you are accountable to them, and take responsibility for them.

    • by dtmos (447842) * on Wednesday March 21, 2012 @01:42PM (#39430981)

      This is why all notions of property are arbitrary.

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

      • by Crag (18776) on Wednesday March 21, 2012 @04:18PM (#39433347)

        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.

  • by Bob9113 (14996) on Wednesday March 21, 2012 @12:19PM (#39429495) Homepage

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

  • Hrm... (Score:3, Insightful)

    by Artraze (600366) on Wednesday March 21, 2012 @12:23PM (#39429559)

    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.

    • Re:Hrm... (Score:4, Insightful)

      by Jonner (189691) on Wednesday March 21, 2012 @12:27PM (#39429625)

      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.

    • Re:Hrm... (Score:5, Insightful)

      by Anonymous Coward on Wednesday March 21, 2012 @12:35PM (#39429747)

      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?

    • by vlm (69642)

      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.

      Oh goodie something I know a little bit about. I love it when we talk chemistry on /.

      However, from the article:

      To be clear, the court still maintains the law of Diehr that “an application of a law of nature or mathematical formula to a known structure or process may well be deserving of patent protection.” On the other hand, the “application” must be “significant,” not “too broadly preempt” use of the law, and include other elements that constitute an “inventive concept” that is significant and separate from the natural law itself.

      From what I understand of that, a patent reading "oxidation and hydrolosis, of sulfur, apply it" would fail miserably.

      On the other hand F-ing around with strange catalysts in lead lined chambers is A-OK for a patent.

      • by Artraze (600366)

        Well if you look at their argument:

        The relation is a consequence of the ways in which thiopurine compounds are metabolized by the body—entirely natural processes. And so a patent that simply describes that relation sets forth a natural law.

        They seem to be arguing that the metabolic behavior and/or equilibrium along with the dosing boundaries are natural laws, and unpatentable. This is pretty much any chemical reaction: conditions, equilibrium and acceptable concentrations.

        Then, regarding the basic do

        • by vlm (69642)

          were well known in the art...well-understood, routine, conventional activity previously engaged in by scientists in the field

          So if the romans did lead chamber sulfuric production, they'd be outta luck, but if they're the first documented attempt at the lead chamber process, then no problemo.

          Perhaps complex multistage processes when one could argue the innovation isn't in any the reactions, but rather the idea of stringing them together.

          I would think that

          previously engaged in by scientists in the field

          Would take effect. So trivial modifications of process are not likely to pass, but something really new is OK.

        • Process patents describe a series of specific steps and conditions under which the transformation occurs. As such they aren't patenting a natural law, merely the specific conditions under which desirable effects of that law can be realized.

    • by oxdas (2447598)

      In your example, the company could still patent any novel methods for identifying or using the "law of nature", just not the law itself. Anyone else could still make use of the law, just not using the methods in the patent. The important thing here is that the method is novel. Prometheus was trying to use a product of nature, mixing it with widely used methods, then calling it something new. If Prometheus had implemented a novel method for testing then the patent might have been valid, but it wouldn't h

    • by el borak (263323)

      Forget patenting extractive distillation methods.

      You can patent the method all you want, you just can't patent the extracted compound if it's naturally occurring.

      If the extraction method is the most practical way of extracting the substance, and the substance has sufficient value, you've got a nice business there.

    • Yes, discovering natural laws can take a lot of research and effort. But something does not magically become patentable just because it takes work to discover.

      This decision most certainly does NOT invalidate chemical process patents. The patent at question was: "Metabolite X is a product of the working dose of drug Y; if you detect X at a certain amount, that's bad." That's it. It's not a patent on how to test for X. It has nothing to do with the creation of Y or X. It's a simple statement of cause an

    • It would be chaos if natural laws or facts were patentable. Imagine a researcher discovers some new natural law governing a particular biochemical transformation occurring in white blood cells. They patent the discovery, then demand payment from each person having white blood cells that exhibit this law for a license to use the law. Preposterous.

  • by betterunixthanunix (980855) on Wednesday March 21, 2012 @12:27PM (#39429623)
    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?
    • Let's see...computer programs are proofs of mathematical statements (see: Curry-Howard correspondence)...so does this ruling finally invalidate software patents?

      Nope. The opinion affirmatively cited Diehr.
      That said, computer programs are already unpatentable... Valid software patents involve hardware, and hardware is outside of the Curry-Howard correspondence, so that argument doesn't even get you to invalidating 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?

      That would be a better way to go at it. We shouldn't be refusing patents on software that actually is new, useful, and not obvious to anyone, simply because they're software... and conversely, that some obvious patents are wrongly issued

      • Better examination would have to be a lot more restrictive than it is now. Currently the PTO grants so many patents that there are not enough lawyers to review them for each company that could be effected. It is currently mathmatically impossible to comply with patent law if your a software developer.
    • For a moment I was worried but then I remembered I don't use natural numbers in my code.

    • meh compiled binaries are proofs of mathematical statements. Computer programs in text form are specialized form of speach. The computer can be micro processor, a person with a calculator, or a pet dog.
  • Exactly what patents cover that *isn't* within the realm of laws of nature?

    • Method of Hanging In Mid-Air For A Few Seconds, Completely Ignoring The Law of Gravity Before Plummeting Off A Cliff... Wait, that one's owned by Wile E Coyote.

    • by Trepidity (597)

      The the opinion [supremecourt.gov] discusses that, since it's at the heart of the case. The key issue is that natural processes and abstract ideas aren't patentable, but processes or methods applying them may be, if the application involves something significant in its own right. However they found that in this case the application consisted of basically the natural law, combined with instructions to doctors to use the natural law, which was too trivial an application. As the opinion argues:

      ...to transform an unpatentable law

    • You can use nature all you want when putting developing a patent. What you can't do is patent nature itself.

      Patentable: You can test for drug metabolite X by heating a blood sample to 100C, twirling it around your head, adding unicorn tears to it, and then looking for it to turn chartreuse.
      Unpatentable: If you find metabolite X in the concentration of 100ppm in the blood a 150lb unicorn, it's tears won't grant eternal life.

      or, in the grand Slashdot tradition of car analogies:

      Patentable: A new fuel formula

  • Someone is starting using common sense. And the brain as well.

  • by Weaselmancer (533834) on Wednesday March 21, 2012 @12:50PM (#39430021)

    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.

    • 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.

    • It's not that simple.

      For one, the ruling is only against the patents that are an application of a law of nature. Math is not a law of nature, it's a tool for putting the laws of nature on paper. Software on the other hand are implementations of algorithms that are (usually) described using math. They are not "applied math" and the algorithms themselves are not patentable (at least not where I live). Their implementations, however, are. You can circumvent a patent by writing your own implementation of the al

    • How many software patents are simply applied math?

      Each and every one of them.

  • by Ukab the Great (87152) on Wednesday March 21, 2012 @01:12PM (#39430431)

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

    • by gQuigs (913879)

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

      Wouldn't they have to admit it's right first? Admitting it is "useful" is a requirement to get a patent. Theories that are wrong, are not usually very useful.

    • I think On the Origin of Species might count as prior art.

  • I hope that this means "high level description of method+implement it" software patents are no longer valid.

  • Apply it. [patent pending]

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