Tuesday, September 15, 2009

More on Patents

This is a partial transcript from J.E.M. Supply v. Pioneer Hi-Bred International (U.S. Supreme Court, 1996)

Justice Souter: [A previous case,] Chakrabarty probably should have come out the other way because you had a specific statute, the PPA [Plant Protection Act], which covered this asexually reproducing plant, a bacterium, and yet the Court did not say that the coverage of [patent law section] 101 was thereby defeated.
Attorney: I don't believe that the Chakrabarty Court viewed the bacterium as a plant.
Justice Souter: Well, what else could it view it as? I mean, [...] I wasn't sure myself, and I went to the dictionary, and the dictionary says it's a plant.
Attorney: --I... the Chakrabarty Court spoke of it as a microorganism.
Justice Souter: Which is a generic term. [...] I take it then on... on your position, if we assume that the bacterium is a plant and it asexually reproduces, the decision in Chakrabarty should have been that it's covered by the PPA and there's no 101 patent.

***

One of our previous post topics (inspired by Elizabeth Pennisi's Science news article), on Microsoft's attempt to patent some commonly used phylogenetic methods, spurred some unlikely side reading. Sidelined by an injury, I picked up Robert B. Laughlin's excellent book on excesses of patenting, The Crime of Reason, and perused some entertaining law texts.

Pennisi cites an obviously frustrated Bill Piel whose comment: "Microsoft might as well patent the multiplication tables," is funnier still because they tried something very similar. Microsoft previously tried to patent verb conjugation! (Patent App# 20060195313, Voetberg et al. 08/31/2006; cannot be accessed online.)

It seems to be very important in biology-related lawsuits whether or not some process, method, etc., can receive protection under patent law section 101. While the U.S. Supreme Court decisions state that, "An algorithm, or mathematical formula, is like a law of nature, which cannot be subject to a patent." But section 101 of the patent law reads, "Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of this title." Additionally, section 100 defines process as, "process, art, or method, and includes a new use of a known process, machine, manufacture, composition of matter, or material."

The interpretation of these laws and statutes is ultimately up to the Patent Office and the courts. Both have erred in the past, and judging by the above-cited patently pedestrian exchange in the U.S. Supreme Court over the case involving my two favorite topics, phylogenetics and plant sex, I am not optimistic.