Ariosa v. Sequenom (Fed. Cir. 2015) (en banc petition denied)
The Federal Circuit has denied Sequenom’s petition for en banc rehearing – reconfirming the panel holding that the claimed “method of detecting paternally inherited nucleic acid” is unpatentable as a law of nature. Patent No. 6,258,540. Following this case, the USPTO may finally begin applying the law-of-nature exception in a major way. The decision also sets up a petition for writ of certiorari to the Supreme Court with several members of the Federal Circuit expressly calling for review.
As I previously wrote, the invention at issue here solves a very practical problem accessing fetal DNA without creating a major health risk for the unborn child. The big idea was the hypothesis that fetal DNA might be floating around in the mother’s blood and that the fetal DNA could be selectively amplified by focusing on the paternally inherited portion of its DNA (rather than the maternally inherited).
The claim itself has two simple steps: (1) amplifying paternally inherited DNA from a plasma sample taken from a pregnant female and then (2) detecting the presence of the DNA. As I mentioned, the big idea was understanding where the baby-DNA could be found (in the mother’s blood plama) and that it could be separated from the mother’s DNA by linking it to the father’s sequence. The technology for amplifying and detecting was already well known at the time of the invention here. Further, these two steps – amplifying and detecting – are the ones always almost used to detect particular DNA sequences.
The district court found the patent invalid under Section 101. That decision was affirmed by a Federal Circuit panel in an opinion written by Judge Reyna and a concurrence by Judge Linn. Now, in the 11-1 en banc denial, we add three more opinions – Judge Lourie (joined by Judge Moore) and Judge Dyk, both concurring in the denial as well as Judge Newman dissenting.
The basic controlling precedent in this case is Mayo v. Prometheus. In that case, the Supreme Court held that the discovered therapeutic efficacy and toxicity of a particular administered drug to be an unpatentable natural law and that the patented testing and dosage methods were also unpatentable as effectively claiming the same law of nature. In particular, the court noted that the claimed steps were not “genuine applications of those laws[, but] rather … drafting efforts designed to monopolize the [unpatentable] correlations.” As in Ariosa, the testing and determination steps were well known in the art and relied upon well-understood, routine, and conventional activity known to those in the field. As such, those additional steps were insufficient to transform the unpatentable law of nature into a patent eligible application of the natural law.
In Ariosa, the Federal Circuit stands almost unanimously in the conclusion that Sequenom’s invention is not patent-eligible under the Mayo precedent (only Judge Newman disagrees). There is, however, substantial disagreement about whether the Supreme Court was correct in its Mayo analysis.
Judge Dyk: I share the concerns of some of my colleagues that a too restrictive test for patent eligibility under 35 U.S.C. § 101 with respect to laws of nature (reflected in some of the language in Mayo) may discourage development and disclosure of new diagnostic and therapeutic methods in the life sciences, which are often driven by discovery of new natural laws and phenomena. This leads me to think that some further illumination as to the scope of Mayo would be beneficial in one limited aspect. At the same time I think that we are bound by the language of Mayo, and any further guidance must come from the Supreme Court, not this court.
Judge Lourie: [I]t is unsound to have a rule that takes inventions of this nature out of the realm of patent-eligibility on grounds that they only claim a natural phenomenon plus conventional steps, or that they claim abstract concepts. But I agree that the panel did not err in its conclusion that under Supreme Court precedent it had no option other than to affirm the district court.
Judge Linn: In my view, the breadth of the second part of the test was unnecessary to the decision reached in Mayo. This case represents the consequence—perhaps unintended—of that broad language in excluding a meritorious invention from the patent protection it deserves and should have been entitled to retain. (Note, Judge Linn participated in the original panel decision but could not dissent here because of his Senior Status).
It will be interesting to see how this proceeds, but my view is that the case has a low-chance for certiorari. In Mayo, the Supreme Court indicated its understanding that the case would halt patenting of many diagnostics, but expressly called on Congress to “craft[] more finely tailored rules where necessary.” In the 3 1/2 years since the Mayo decision, the diagnostic industry has not been able to get a bill even proposed in Congress that would so-tailor these rules (at least that I know of).
Where oh where have all the naysayers gone?
Is Ned the only one that is willing to speak up (even if he does so to only skirt the issue)….?
Come people: this is a definitional aspect of patent law. First principles and all that.
35 U.S.C. 100 (a).
Anon, regarding §100(a), you are arguing that there is a distinction between invention and discovery. I do not disagree. As I said before, I do not believe that one can discover a new machine, manufacture or method. One can however discover a product of nature or a law of nature.
Were not for the word “new” in the statute that was added by Jefferson in 1793 when he added “composition,” I would agree that discovery of compositions found in nature would be statutorily authorized.
That leaves the question of laws of nature. What are these but facts? Can one patent a fact? I do not think so. Facts are neither machines, manufactures, methods or compositions. That is why facts cannot be patented.
But one can patent applications of one’s discoveries. That means one can patent an application of a law of nature or new use for a product of nature.
Do you have any fundamental problem with this analysis?
Ned,
I very much have a fundamental problem with your analysis.
Several, in fact.
First, your “version” of “new” is just that: a version. (and that “version” depends on the wrong branch writing the statutory law)
Second, you STILL do not actually address the very direct words of 35 USC 100 (a).
Third, you continue to ig nore the fact that the Act of 1952 is the controlling law on this topic – and not any earlier patent act. You just do not get to act in a vacuum and not take into account that Congress revamped – substantively – the ENTIRE single paragraph to create the panoply of what we now talk about as 101/102/103/112.
That said, let me give you a direct point and ask (once again) that you treat the direct words of 35 USC 100(a).
Any “version” you come up with cannot make the direct words of Congress “disappear.”
Your attempt here to draw a distinction as to ONLY being patent-eligible (you incorrectly use the phrase patentable, perhaps a nit, perhaps not), as to those things that take discoveries and APPLY them. The problem with that position is you are directly reading out of the statute “discoveries.” Your “want” here IS invention. That is already a given, and you are doing nothing more than conflating on the VERY POINT that I am asking you to recognize the need NOT to conflate.
No one is questioning that an invention that APPLIES discoveries is rightfully belonging to 35 USC et al.
No one.
Please STOP trying to use “logic” that arrives at a point that no one is arguing about.
Please return to the underlying definitional issue that I am explicitly asking about.
While you contemplate the words of Congress, DO keep in mind the proper congressional authority, and DO NOT attempt to nullify the direct words that I am asking about.
What are the chances that we will be treated to “crickets” yet again, instead of something directly on point…?
Anon, Congress did not write on a blank sheet. The words of a statute are interpreted according to the way they were understood when they were enacted.
Ned,
It simply is NOT a matter of Congress “writing on a blank slate” as you wish to allude to.
I have been more than clear in showing you that your view just does not match the words of Congress, the congressional record, the writings of Federico and Rich, and even post-1952 case law.
You, on the other hand, have shown NOTHING but your “version” and your say-so.
Your “point here” does not even reach, as the understanding at the time of 1952 is abundantly clear that your ‘version” simply cannot hold.
And let me point out (yet again) – that you STILL have not addressed the simple fact of 35 USC 100 (a) as I have set forth.
Why is this so very difficult for you?
Remember: use the proper year of congressional authority (1952) and do NOT have a version that eliminates the very words of Congress.
It should be a clear logical hint to you that if your version does in fact eliminate the words of Congress, that there is something very wrong with your version. Why is it so very hard for your to think critically on this matter?
anon, I did addresss 100(a).
Ned,
Your mere acknowledgment of the point that I have a valid point in that 35 USC 100(a) means that there is a difference between invention and discovery is simply not enough to be able to say that you have addressed that section of law.
I provided two considerations for you to also meet. You have met neither.
All that you have done – and exactly as I have described your actions – is to attempt an end game around that very section and a (continued) attempt to peddle a version of law that in fact eliminates the words of Congress.
Once again Ned, I call on you to address the section of law in a proper manner.
Take baby steps if you need to. You have admitted to a difference existing. How does discovery go beyond invention (what is the difference in a patent eligible manner).
All I see from you is a mere “token” answer and dissembling move to your “version” which without more is simply NOT supported by your own admission that a difference exists.
(still waiting Ned – come to the page, read my counter points and please try to (finally) address the item I ask about (and not your gallivanting into the weeds of some other “version”)
So then Ned, you agree that one can patent a method of determining the energy equivalent of a mass based on a discovered fact?
Dear Ned and the Supremes:
You may want to rethink the whole “Judical Exception” thing. I mean if methods aren’t methods under 101 if they occur in nature, then the method for making penicillin is not patentable and no one invests in penicillin manufacturing plants.
1. A method for producing penicillin comprising incubating a pencillin-producing mold in contact with an aqueous nutrient medium containing an assimilable carbon source and containing from 5.0 to g. of degraded proteinaceous material per liter of medium, a portion of the assimilable carbon source being added at the beginning of the incubation period and additional increments thereof being added during the period to compensate for that used up by the mold, the total amount of assimilable carbon source used being from 5.0 to 150 g. per liter of medium.
link to awesomestories.com
link to patents.google.com
Les, I do not agree that the lack of eligibility for products of nature is based upon a judicial exception. The Supreme Court held in Myriad that products of nature were not “new” compositions. This is exactly in accord with the way new was added to the 1793 statute when compositions were added. In order to be eligible subject matter, the compositions must be new in an absolute sense even though our otherwise unknown.
Assuming that penicillin is a product of nature, certainly new methods of manufacturing penicillin are patentable. However, an old method of manufacturing a product cannot be re-patented just because it is applied to a previously unknown composition found in nature.
See the distinction?
Read the claim Ned. Its get mold that makes penicillin, feed mold that makes penicillin….That occurs in nature.
Myriad, and all the other “laws of nature”, “products of nature” cases were wrongly decided.
That’s why I addressed the Supremes.
While I am not saying that Les is absolutely right in his view of “discovery,” it would be helpful for any and all those who do not want to believe that his view is indeed not correct to at least try to provide some meaning to the words of Congress in 35 USC 100(a).
What does the fact that Congress recognized a distinction between what we call inventors and what we call discoverers means when Congress apparently opened up the possibility for patents for both of these different things.
I invite – without snark – those who would dismiss discoverers to provide some (any) reasoning to this definitional and foundational aspect of patent law.
Anyone up to that task…?
“anon” I invite – without snark – those who would dismiss discoverers to provide some (any) reasoning to this definitional and foundational aspect of patent law.
I look forward to hearing an answer from someone who is “dismissing discoverers”.
As to why one isn’t permitted to obtain a patent claim to every non-obvious “discovery” that one makes during the course of one’s life, I think the question answers itself. And of course we all know that patents can be used to protect all kinds of “discoveries” if certain conditions are met, e.g., if the claim describes an advance over the prior art that is eligible for patent protection.
If I brush aside the ad hominem short script and attempted goalpost moving and conflation that is the typical Malcolm post I see that Malcolm has not addressed the issue whatsoever.
can you try again or at least please stfu and let someone address the simple and direct point of 35 USC 100(a).
“can you try again or at least please stfu and let someone address the simple and direct point of 35 USC 100(a).”
You’ve been inviting people to address this for years. Nobody wants to take your bait. And also your triple negative in the asking of the question is bound to leave people scratching their heads.
link to i1.kym-cdn.com
6 – it is a very straight forward item.
Note that Malcolm chooses (porly) to not even bother to attempt the very simple item.
I note too that YOU also do not bother to attempt, instead wanting to discuss me.
P A Y
A T T E N T I O N
Try again to address the topic.
Not me ( yes, I realize that you and Malcolm may find that difficult – but T R Y)
“While I am not saying that Les is absolutely right in his view of “discovery,” it would be helpful for any and all those who do not want to believe that his view is indeed not correct to at least try to provide some meaning to the words of Congress in 35 USC 100(a).”
Tttttttriiiiiple negative!
You really having that hard of a time following along, 6?
Way too funny.
In that case, then try either post 10.1 or post 8.3.2.2.1.
The thing is they could have crafted claims that were patentable, but they would have been more detailed and more narrow as they would have had to get into the specific choices they made in the identification process.
The broadest claims in question simply claimed well-known techniques to look for material that was known to exist in the mother’s bloodstream.
WOW – that was edited…?
Let’s try again:
Thank you for your (left standing) response. Those not left standing, well, I hope you get the picture.
Here, though, I must admonish you as you TOO have failed to actually address the particular point under consideration, and quite in fact repeat the [___] errors of conflating 103 and 101.
In one of your other responses today, all you do is offer the opinion – with NO explanation – as that 101 could be used for what is essentially (still) a 103 rejection.
I invite you to try again, and this time try to stay on point.
[that point being 35 USC 100(a) and the clear direction that Congress does recognize a difference between inventions (inventors) and discoveries (discoverers) and that BOTH are included in the proper domain of patents]
anon, if patents are also limited to new compositions, how can the discovery of an old composition be patentable?
The discovery then must be of a new way of applying the old composition to a new use.
Thank you Ned, as you have come closest (while not quite making it) to staying on point.
Please try again and address the actual point asked instead of asking a different question.
(it’s not that your question is a “bad” question, it is just that your question does not in fact answer the point here – I am looking for a straight up H O N E S T answer to this direct point)
So far, no one has been able to step up and deliver. The invitation still stands.
All I am saying anon is that the term discovery does not exist the statute in isolation. In order to determine what discoveries are patentable subject matter one has to also determine whether the subject matter is a new or improved, machine, manufacture, process or composition. Among these, one cannot simply discover a new machine, manufacture or process. Therefore that leaves compositions. But the statute requires a compositions either be new or improved. Thus one cannot discover an old composition. Therefore with respect to compositions, the composition itself either must be new or improved or the discovery must be with respect to a new use.
As I said – your question was not a bad question – it just does not address the immediate point.
Try again.
1. New means newly publicly known (see 35 USC 102).
2. One can discover a new process (e.g., the krebs cycle, photosynthesis).
3. As you note, one can also discover a new composition of matter (e.g., penicillin).
4. Discovery of such things is clearly the sort of think the drafters would have wanted to promote.
Les, 1. New means newly publicly known (see 35 USC 102).
Patent Act 1790: they “have invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used”
Patent Act 1793: “they have invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement on any art, machine, manufacture, or composition of matter, not known or used before the application,”
“New” was added in 1793 as was “composition.” “not known or used” was retained.
“New” does not mean “not known or used.” It has nothing to do with prior art. It has the to do with compositions and that they have to be new even though not previously known or used.
““New” does not mean “not known or used.” ”
Yes it does Ned. I respectfully submitted that your quotes from 1790 and 1793 only go to prove it.
I’m not sure why you quoted them. It may be that you think new, under my definition, would be redundant with “not known or used before ” in the version of 1793. My response to that position is that under your definition, it would be redundant with “invents.”
New means not previously known (see 102). There is nothing to discover (uncover) but laws of nature and natural phenomena.
Les, there is no way to reconcile your version with events (1790-> 1793).
One can invent something already known because he himself may not know it. However one cannot get a patent on that which is known regardless that the inventor did not know if it personally.
In contrast, one cannot patent a composition that is not absolutely new even if it was not previously known or previously used by anybody. It is amazing that it took until recent times for the Supreme Court to actually hold that a composition found in nature was not “new” under 101.
Ned, your “logic” is circular.
Also, you still have not addressed 35 USC 100(b).
Please do so.
In a direct and inte11ectually honest manner.
Thanks.
Oops, 35 USC 100(a).
(35 USC 100(b) is a separate problem that you have that is not at issue here)
As I pointed out previously anon, and probably many times I pointed out previously anon, one might discover the “New World” but that does not mean the New World is “new.”
“One can invent something already known because he himself may not know it. However one cannot get a patent on that which is known regardless that the inventor did not know if it personally.”
No. One can’t. One might think one invented something. However, if it already existed, one did not invent it. If Myron Hornbuckle made a contraption for separating seeds from cotton two years after Eli without knowing about Eli, we would not call Myron the, or even an, inventor of the cotton gin. That title goes to Eli.
Ned,
Put aside your circular logic and address 35 USC 100(a)
P L E A S E.
Ned –
How do we know that Crestor and Lipitor have never been created in nature? How dare we issue patents for them just because no one has yet FOUND them in nature.
The answer my friend, is that “new” means not previously known in the society issuing the patent!
Les, if something is known to the inventor, but he did not create it, can he claim he created it?
Of course not. However, she might be able to claim that she DISCOVERED it.
Ned,
“create”…
You are being circular again.
Also, you still have not addressed 35 USC 100(a).
Please do so.
In a direct and inte11ectually honest manner.
Thanks.
At 1, way below, MM points out that the claim at issue fails to recite the solution to the problem. That reminds me of the EPO line, that what is patentable is the solution a technical problem. Merely reciting the problem to be solved ain’t enough.
Which tool does the EPO use, to enforce this line? Prior to issue, Art 84 EPC (clarity, what you call definiteness). But as Art 84 is not a ground of revocation, it falls to Art 54 and 56, novelty and obviousness, to do the job.
As to “discovery “, back in the 18th century this meant something like the discovery process in litigation, something uncovered (or made available to the public). The patent bargain, rights in return for disclosure.
As to the limits of eligibility, I like patents on technology but abhor patenting science.
How do you feel about applied science?
(Hint: this is tied to Utility)
HEY NED, DID YOU SEE THIS:
“As to “discovery “, back in the 18th century this meant something like the discovery process in litigation, something uncovered (or made available to the public). The patent bargain, rights in return for disclosure.”
No it did not, Les. It meant something like “Columbus discovered the new world.”
New here meant that what we now regard as the America’s were not then known and that their discovery made them known.
But “new” in the 101 context means “not preexisting as a matter of fact.”
The problem is that we have one word that means different things depending on context. That is not unusual in the English language.
..and yet Ned, in the brand new spanking AIA, “new” is deliberately set forth as “new to you” with the case of Metallizing being expunged per the words of Congress (see The Soliloquy)
Anon, I did not see any changes to 101 in the AIA on this topic.
Whether something is prior art or not goes to the historical analysis of “known and used” that first appeared in the statute in 1790. New does not mean or have anything to do with whether something was known or used at the time of invention. “New,” however is an independent requirement that exists regardless of whether something was known or used.
Your “version” remains Wack Ned. How often must I remind you that before 1952, the item you want to parse out was part of a SINGLE paragraph?
You want to look at a ‘verbatim’ words, and IG NORE all of the other context that happened in the Act of 1952.
You just cannot do that – not in ANY inte11ectually honest sense at least.
“But “new” in the 101 context means “not preexisting as a matter of fact.” ”
Why? Because you say so, or because you want it to be so?
For the meaning of new in the patent sense, see 102.
Les,
It is clear that Ned employs the circular logic of “want.” He is only too wiling to ig nore the important context involved in order to arrive at the ends of his mantra.
Did these judges actually read the Mayo and related decisions?
Did they (and Prof. Couch) actually read the entire claim as required?
Method claim 1 is limited to “performed on a maternal serum or plasma sample from a pregnant female”.
Yes, PCR and immunoassays are known but as clearly stated in specification:
“It has now been discovered that foetal DNA is detectable in maternal serum or plasma samples. This is a surprising and unexpected finding; maternal plasma is the very material that is routinely discarded by investigators studying non-invasive prenatal diagnosis using foetal cells in maternal blood.”
Yes, it was known to PCR/Immunoassay blood samples, but the claim is limited to
“maternal serum or plasma sample from a pregnant female” (contrary to the broader suggestion in paragraph 3 above that refers to “mother’s blood”).
So, claim 1 is not directed to a natural law/phenom or abstract idea since requires concrete steps never performed using maternal serum or plasma.
Even if arguable “natural/abstract”, the specification clearly sets forth why the additional limitations (including the type of sample used) is inventive.
The Fed Cir should have granted a en banc hearing, but likely a waste based on their collective comments.
Next step: Supreme Court cert request.
We definitely need to Supreme Court to revisit and clarify.
splinter: claim 1 is not directed to a natural law/phenom or abstract idea since requires concrete steps never performed using maternal serum or plasma.
That’s not how the subject matter eligibility analysis works. Just because you discover a new natural phenomenon doesn’t mean that you can prevent other people from looking at the same phenomenon using generically recited conventional techniques that were created especially for that purpose (i.e., looking at that class of phenomena). If that were the case, I could discover a new naturally occuring virus and then remove it from the public domain by claiming the use of conventional methods of looking at viruses to (wait for it) look at this new virus. According to your “analysis”, such a claim is “not directed to a natural phenomenon” because nobody had previously used those conventional techniques on “compositions comprising the new virus.” Most people will agree that your analysis is stillborn. It would punch a gaping loophole in 101, just as Prometheus’ claiming strategery would have done.
Did these judges actually read the Mayo and related decisions?
Yes, they did.
the specification clearly sets forth why the additional limitations (including the type of sample used) is inventive.
No doubt you are aware the Ariosa had originally tried to obtain and enforce even broader claims than the claims asserted here. Remember: an explanation in the specification as to why the alleged inventors believe that something is “inventive” is not at all probative of the issue as to whether that something is, in fact, inventive. For example, the specification could explain why the inventors believed that they invented the world and everything in it. So what?
Furthermore, it’s not disputed that PCR was performed on both maternal blood and serum prior to the critical date. And guess what? It worked. Of course it worked. The only “new” thing here is the name given to some of the DNA molecules floating around in that blood. Fetal DNA isn’t some sort of completely different chemical composition other human DNA. It’s still just DNA. PCR doesn’t care what we call it.
Your unknown virus was no more in the public domain prior to your discovery of it that was the cotton gin prior to the invention of it.
Les, hand over the ca keys.
Whether or not he virus is known is quite separate from whether it exists “in the public domain.”
Think “inherency.”
Your unknown virus was no more in the public domain prior to your discovery of it
Likewise with that very particular piece of gold lying in the very particular piece of ground. But that’s not the point.
The point is that “using a shovel” to move dirt around is most definitely in the public domain. That doesn’t change just because you recite some “new” coordinates where nobody shoveled before (or described “in a printed publication” as a place to dig). Presumably you and everyone else can see the problems that would inevitably arise if your rule is applied. If you’re having difficulty, try stepping out of your patent lover’s shoes for a second and look at the situation from the perspective of the zillions of folks who’ve been freely using shovels to dig up stuff, everywhere they like, for many years.
sounds like 103 arguments….
(‘natch)
What?
Who is stopping people from shoveling “generally”?
Using this new analogy of yours, a patent is like staking a claim to the hole where the I found the gold and the area around it, not shoveling generally, just shoveling here in the area marked X.
link to youtube.com
” just because you discover a new natural phenomenon” ?
The claimed method is not a natural phenomenon. It’s a novel and non-obviousness method that involves using previously known processes (PCR and immunassays) on an extract from natural blood.
No one has apparently performed those steps on a mother’s blood plasma (which was always discarded in past).
The result is a new technique for determining pre-natal defects, etc.
I cannot believe the courts of finding this invention not eligible for patentability regardless of how new, non-obvious and useful the test is.
These decisions are horrible.
splinter: The claimed method is not a natural phenomenon.
Nobody is suggesting otherwise. If you’re going to simply beat on a strawman and ignore the issues and the actual analysis being applied then there’s no point in discussing the case or the issue with you. Rant away!
I cannot believe the courts of finding this invention not eligible for patentability regardless of how new, non-obvious and useful the test is.
You better learn to believe it, friend, because it’s the law and it’s not going to change. To be more specific: subject matter eligiblity is never waived merely because the ineligible subject matter is non-obvious and valuable. It’s a feature, not a bug, and the Supreme Court is well aware of it.
Justice Breyer put the spotlight on the issue in the oral arguments in Mayo with a great hypothetical “discovery”. Specifically he postulated an incredibly useful and non-obvious discovery whereby fingernail length was correlated with some terrible disease. Could you claim “Determining likelihood of terrible disease by looking at fingernail length and correlating said length with said disease”? The answer, of course, is NOPE. That answer is not a judgment on the awesomeness of the discovery. It’s a judgment on what sort of claims belong in a patent system if we expect the patent system to function.
….and (following the Breyer line) there is some rare dread disease of the potato (or wheat or rice) plant which is treatable (if I spot it early enough) by application of a particular expensive and known fungicide X, and if I discover a correlation between leaf shape (rather than finger nail length) and the disease, can I have a patent on a method of spraying potatoes with X, characterized by the step of correlating dosage X with determined leaf shape? Is the answer “Of course not” or does it depend on exactly what I claim?
Is the answer “Of course not” or does it depend on exactly what I claim?
I think if this fungicide is already known to be useful for treating the disease in question, you’re in a tough spot (analogous to the Breyer scenario). Your best bet would be to recite an innovative method of determining the leaf shape of the plants.
Thanks MM. Tough? Sure. That was the aim.
I had in mind that my leaf shape test enables earlier diagnosis than hitherto, thereby raising both yield and standards of plant husbandry. It seems to me then, that it ought to be patentable.
So let me make sure that I understand your position, MaxDrei…
You believe that the mental recognition alone of a fact of nature ought to be patentable?
It appears that you want “enablement” and not actual timed improvement to be enough.
Your position appears to not even rise to the level of Funk Brothers, as that case had to use a mixture of separate natural facts.
If I am off, please let me know.
If I am not off, perhaps this is your contribution to the question posed at post 13.
But please be sure to note that I am NOT passing judgment on your view here – I am merely seeking clarification.
“Nobody is suggesting otherwise.”
You do realize how very little credibility there is in that statement, right?
Malcolm, I think the issue is broader than just that a law of nature is involved. I think that any process claim that only produces new information as an output is not the subject matter of the patent system.
Ned,
Tell me about encryption.
Funny how that that topic typically chases you away.
Surely you jest – because something must be encrypted and to be useful that something must be a single.
??? a “single”…?
Sorry Ned – I cannot make sense of your reply. Please try again.
Thanks, anon.
Dragon may have meant single. But I may have meant something else that sounds similar.