When Natural Laws are Wrong

by Dennis Crouch

René Descartes may have been the first expressly identify the physical operation of our universe as “laws of nature” (although published in French) – spelling out specifically his three immutable laws of nature (later serving as Newton’s foundation):

  1. Each thing, as far as is in its power, always remains in the same state; and that consequently, when it is once moved, it always continues to move” (Pr II 37);
  2. All movement is, of itself, along straight lines (Pr II 39); and
  3. A body, upon coming in contact with a stronger one, loses none of its motion; but that, upon coming in contact with a weaker one, it loses as much as it transfers to that weaker body” (Pr II 40).

As the study of these natural laws developed, so did the recognition that they are not immutable laws, but rather fail to actually describe the working of our universe.  The third law was the first to fail as the “laws” of conservation of energy and momentum were further developed.  The other two laws dropped away with the theory of relativity and quantum mechanics.  Although still used today, we recognize that they are only a rough approximation.

In Mayo, the Supreme Court held the following to be a “law of nature”: If the blood-level of 6-TG exceeds exceed about 400 pmol per 8×10red blood cells, then the administration of the standard dose of thiopurine is likely to produce toxic side effects, whereas a blood level of about 230 pmol per 8×108 red blood cells indicates that the standard dose should be increased.  I am betting that this supposed “law” turns out to be incorrect as well.

The question I’m pondering over the next couple of weeks is how the law of patents should treat these incorrect or unproven laws of nature.

165 thoughts on “When Natural Laws are Wrong

  1. Anon, you keep claiming that there is something in 35 U.S.C. § 100(b) that dramatically amends 101 in no way that overrules cases like O’Reilly v. Morse, or extends patentable subject matter into areas that Congress or the Supreme Court had previously not extended. Nothing can be further from the truth.

    However, what is it in the statute that changes the existing law as it stood in 1952 in a way that you think is significant?

    1. The “something” is nothing more than what it is (there is NO effort from me to expand anything).

      That “something” is the express words of the definition of “process” that negates your attempted portrayal of the word as some type of SUB-category and mere handmaiden of the hard goods categories.

      We’ve been over this before Ned and I have patiently explained to you why the direct words mean that your (crabbed) view is simply not correct.

  2. Boundy: Your observation is relevant to “scope of enablement” or “utility,” and at least tangentially relevant to “abstract idea” eligibility, but entirely irrelevant to law of nature subject matter eligibility.

    Here was my “observation”:

    try starting with Prometheus’ theory of infringement instead. You know, the part where they stated under oath that their claim would be infringed by looking at data obtained by an old method, thinking about the correlation, and doing nothing else. Reemember also that Mayo’s doctors were thinking about other numbers and administering altered doses or not. Sometimes those other numbers fell within the claimed ranges (of course they did because the ranges are enormous).

    At the end of the day, it doesn’t matter if what’s being thought about after (or before) the old data gathering step is a “correlation”, an absolute law of nature, or a flying unicorn with purple flippers and three tails. The issue doesn’t change. You can’t protect “new meanings” of old data with a patent claims, and reciting the old data-gathering steps doesn’t help because that’s just a prior art context (one of a zillion different prior art contexts).

    The “relevance” of my observation is to help David and people like him get off the rock where “everything is a law of nature and therefore everything is ineligible.” As I noted, you can get off the rock if you read Prometheus v. Mayo as a whole and you try to understand the underlying factual context (including the prior art) instead of taking isolated sentences out of the case and pretending that you were born yesterday.

    If you read the case as a whole with a willingness to understand, you can not help but realize that the Supremes are perfectly aware that one can identify a “natural law” underlying every eligible invention because we live in a universe where “natural laws” of one degree of absoluteness or another are responsible for the predictability and utility of every useful, claimable innovation that is part of our objective physical/structural reality or which (in the case of a process) changes that objective physical/structural reality.

    The point is that you can not protect such “laws” (or any other abstraction) with patents merely be reciting some prior art (i.e,. “conventional”) context for that “law”. And it’s pretty easy for most people to understand why this rule is necessary. For super mysterious reasons, it’s extremely difficult for a certain class of attorneys deeply invested in expanding what is eligible to understand why this rule is necessary. Bizarrely enough, it’s extremely difficult for some people to grasp this basic stuff even after the experiment was performed with predictably disastrous results for the entire system — results that we’re still in the process of cleaning up. It’s going to take decades to clean it up, in fact, because the problem (or similar manifestations of it) is still percolating in various fields where junky ineligible patents are still routinely granted.

    Here’s a little thought problem for David and his blinkered cohorts: look at the paperweight on your desk. Let’s say I “discover” that where you put your paperweight (quadrant 1, 2, 3 or 4) is correlated with some likelihood that you’re going to get cancer of the face. New and non-obvious and useful because, hey, cancer of the face is terrible. I file my application and get my claim to a method of putting a paperweight on a desk in a certain quadrant and thinking about the correlation. I send you the patent, or you hear about it in the news. Now you know about the correlation and, if you’ve got a paperweight, you’re infringing. My lawyer will be calling you to discuss how to avoid meeting me in Federal Court.

    Nobody outside of the patent system would fail to recognize or admit the ridiculous problems that would flow should this sort of scenario be permitted to play out. Likewise, nobody outside the patent system would make ridiculous statements about “nothing is eligible after Prometheus”.

    In short, everyone can see what’s going on. Including David Boundy. Like David, I’m a patent attorney and I’ve been watching this issue closely for many many years. Unlike David, I’m not afraid to discuss the facts and the issues plainly. There was no need for nuance in Prometheus v. Mayo because what needed to happen was for the hammer to come down on this absurd and logically unworkable proposition that you can’t look at the prior art when assessing the eligibility of a patent claim.

    1. I only discussed “law of nature” subject matter eligibility. Whether the claim has defects under other statutory requirements is your issue, not mine. Mixing things up only reflects confusion.

      Since you didn’t respond to anything I wrote — instead you constructed a weird strawman of your own — I won’t respond either.

      1. David,

        Very good points.

      2. Whether the claim has defects under other statutory requirements is your issue, not mine.

        Meet David Boundy, folks. He’s a very serious person! Maybe a little silly looking with his head in the sand like that but he feels safe that way. Let’s give him a break. Or not. 😉

        you constructed a weird strawman

        No, David. As I pointed out very plainly, the “strawman” are these attacks on the Prometheus decision based on silly constructions of the term “law of nature” that serve only to create confusion and miss the entire point of both the opinion and subject matter eligibility generally.

        Yours is a widely played game, David. I’ve been watching for a long time. As I mentioned immediately, Dennis could do a much better job of educating his readers about the issues but for whatever reason (probably because he has some strange attraction to “good” software patents, whatever those are) he frequently gets pulled into the abyss of elephants when 101 comes up. None of this stuff is very difficult once you put down the kool-aid and start from a principle other than “any innovation that minimizes cancer must be eligible” or “any innovation that makes me proud of my new phone is eligible.”

      3. Boundy: you didn’t respond to anything I wrote

        I quoted what you wrote and responded directly to that. You wrote that “[MM’s observation] is … entirely irrelevant to law of nature subject matter eligibility.”

        That’s false. And I explained why. I explained why because it’s extremely important to understand not only that your statement was wrong but why your statement was wrong. If you have questions about my explanation, than ask them. I fully expect your “strawman” to show up quickly when that happens but go ahead and surprise me.

  3. As may be fitting, Google celebrates the birthday of Max Born today.

    The listed quotes from Mr. Born may be taken in context of various discussions here:

    The belief that there is only one truth, and that oneself is in possession of it, is the root of all evil in the world.

    I am now convinced that theoretical physics is actually philosophy.

    Intellect distinguishes between the possible and the impossible; reason distinguishes between the sensible and the senseless. Even the possible can be senseless.

  4. “It is indeed. But the actual pill is a composition of matter, and nobody, anywhere, is proposing that the composition is not eligible.”

    Martin,

    Actually, following the “logic” in your article “Subject Matter Eligibility in the Information Age” you would suggest many composition of matter should not be eligible. For example in your article you state:

    “For patentability, an abstract idea means an invention where the improvement over the prior art is merely claimed at the level of an idea, rather than as a realized invention, which means that the analysis turns on extrinsic factors such as the state of the prior art, the dimensions of knowledge available to persons having ordinary skill in the pertinent art, and the substantive real-world meanings of the specification and claims at the time of invention.”

    In many cases new compositions of matter are claimed using a Kekule structure which is a mere abstract representation of the actual compound, and, therefore, by your logic, many chemical compounds have for decades been claimed as “abstract ideas” that should not be patent eligible.

    link to chem.ucla.edu

    Believe it or not, real chemical compounds do not have little lines in them connecting the atoms to each other, they have orbitals that overlap. Furthermore, a “double” bond, two s orbitals from two different atoms overlap each other and two lobes of two p-orbitals overlap from the two atoms overlap each other:

    link to en.wikipedia.org

    So the representation of two lines connecting two atoms in a double bond in a Kekule structure is a very “abstract representation” indeed since it represents a bond in which there are 3! (not 2) overlapping pairs of orbitals.

    The Alice decision is both lawless and a complete mess rendered by arrogant and technologically and scientifically ignorant justices, who, in a rational world, would be impeached for making such a lawless decision.

    1. Rational the infringement comes from assembling those atoms- they remain compositions of matter. The infringement does not occur when one draws them. Are you suggesting that technical diagrams are patent eligible at this time?

      The graf you excerpted is contrasting patentability from eligibility- something you seem to be complaining about as lawless to conflate.

      1. Martin;

        Your statement:

        “For patentability, an abstract idea means an invention where the improvement over the prior art is merely claimed at the level of an idea,”

        By your “definition” a new composition that is claimed using a Kekule structure is an “abstract idea” because it is “claimed at the level of an idea”.

        What I am illustrating is that at some level, ALL claims, even compositions of matter, are claimed “at the level of an idea”, that the nature of patent claims which used words, mathematical formulas, chemical formula’s etc. to describe machines, compositions and processes that happen in the real world.

        Therefore, disqualifying a claimed process as being patent ineligible because the claim claims an invention at the level “abstract idea” is a nonsensical reason for deciding that a claim is patent ineligible. You’re effectively determining a claim for a process is patent ineligible because it is a patent claim for a process.

        1. ARP,

          Martin’s attempts are flawed because he works from a desired Ends and tries to insert “philosophy” to support his desires without appreciating the terrain upon which he does battle.

          He lacks mooring to the legal concepts that he desires to “set up” to fit his views.

          He does not understand that utility – ALL utility – is viewed from the “human as consumer” viewpoint, and (woefully) attempts to portray some information as being “consumed” by machines, and thus “ok” (even if “more malleable”).

          His “claimed at the level of…” is merely one more hand-waving from him on patent fundamentals. He keeps on “waving around” his paper, but his paper contains so many errors as to serve only as a limitation – not a foundation for further development.

          1. Anon,

            Thanks. I understand your comments about Martin and his paper. Sadly, your statements: “he works from a desired Ends and tries to insert “philosophy” to support his desires without appreciating the terrain upon which he does battle” and “He lacks mooring to the legal concepts that he desires to ‘set up’ to fit his views” pretty much apply to each of the Supreme Court justices with respect to their 35 USC 101 decisions, with changing “he” to “she” for the female justices.

            As you probably know, until the Supreme Court decision in Alice made “abstract” and “idea” “dirty words” in patent law, it had long been understood that all patent claims cover ideas at some level of abstraction. For example, as I’ve illustrated, even chemical claims, by using chemical structures to represent molecules claiming ideas at a level of abstraction, a fact I have not seen addressed by the lawyers and law professors who have stated that Alice is a “good decision.”

            Because of their failure to appreciate how patent claims work, when the Supreme Court justices tried to achieve their “desired end” of making claims they didn’t like such as: business method claims, software-related claims and computer technology claims unpatentable, the justices created a lawless test unmoored from the statute that has not only made the claims they don’t like patent ineligible, but has even allowed the PTAB to decide, citing the Supreme Court’s decision in Alice for support, that an MRI machine, i.e., a machine”, is an “abstract idea’ and therefore “patent ineligible”.

            link to ipwatchdog.com

            That’s where we are now in U.S. Patent System, thanks to the lawless decision by the U.S. Supreme Court in Alice v. CLS Bank.

            1. It is with sad irony that I concur – and offer that your comments do not encompass ALL the errors with which the Court (in all its “Supreme-ness”) has stumbled through.

              “Patent profanity” is all too real. This “abstract concept” merely “abstracts up” as a category of ills induced by the courts.

              that all patent claims cover ideas at some level of abstraction” Not only is that true, but patent applications themselves demand a section labeled “Abstract” [yes, a bit of pedantic word play].

              But a bit less pedantic, we (the royal “We”) have had conversations on these boards on what the “Ladders of Abstraction” mean, and your point of “all claims” can easily be seen to be true for ANY patent of any worth. There may well be exceptions at the edges, wherein an excessively detailed “picture claim” in a singular “objective physical description” may be made, but certainly these are exceptions that prove the rule. As is often the case here on this blog, this fact of the patent world attracts a fair number of anti-patentists that “demand” that only claims written in the (optional) singular objective physical structure sense “merit” patent eligibility (or that there are somehow always ONLY two rungs on any ladder of abstraction).

              But to add to the “woes” that the Court brings, note as well as the point you present, the fact of the matter is that the Court – to reach ITS desired Ends – engages in a conjectural, forward looking guess as to what may happen if its own law-writing is not “followed.” Any such future “may” does not reach a state of present “case or controversy” which provides a ground basis (read that as proper limit) on the judicial power itself.

              Further note that Congress has already delegated the entity to which gets to decide what the invention is “directed to.” Hint: it is not the Court. For the Court to turn around and RE-direct what it is that is being “directed to” (because they may “feel” that they “know it when they see it”) steps over the limits of their proscribed role.

              Note as well that the Court’s pronouncements simply have become irreconcilable with themselves. You note at 4.1.5.1.2.2.3
              (as reflected by Mr. Quinn) that “Mayo has overruled Diehr” – and yet the Court expressly stated otherwise. With all due respect to all parties, one cannot “overrule” when one is saying expressly that one is NOT “overruling.” The takeaway then remains singular: that the Court is spouting unsupportable (irreconcilable) nonsense.

              The emperor truly is not wearing any clothes.

              Or with another analogy, the bath water and the baby have both been thrown out.

              1. Anon,
                “But to add to the “woes” that the Court brings, note as well as the point you present, the fact of the matter is that the Court – to reach ITS desired Ends – engages in a conjectural, forward looking guess as to what may happen if its own law-writing is not “followed.” Any such future “may” does not reach a state of present “case or controversy” which provides a ground basis (read that as proper limit) on the judicial power itself.”
                What the Court did was even worse than what you have described. The Supreme Court not only engaged “in a conjectural, forward looking guess as to what may happen if its own law-writing is not ‘followed.'” It’s supposed basis for justifying “in a conjectural, forward looking guess as to what may happen if its own law-writing is not ‘followed'” was erroneous.
                To justify their rewriting of 35 USC 101, the Court stated “We have described the concern that drives this exclusionary principle as one of pre-emption. See, e.g., Bilski, supra, at 611–612 (upholding the patent “would pre-empt use of this approach in all fields, and would effectively grant a monopoly over an abstract idea”).”

                But the Court’s concern about future “pre-emption” ignores the fact that 35 USC 102, 35 USC 103 and 35 USC 112 exist in part to prevent such potential “pre-emption”. As a matter of statutory interpretation, it was also improper for the Supreme Court to not at least discuss why 35 USC 102, 35 USC 103 and 35 USC 112 were inadequate to address the Supreme Court’s fears of future “pre-emption.”

                1. As long as we are playing this “and it is even worse” game, let’s take your post here in reply to mine and add the fact that the only thing that claims DO – the thing that claims, ALL claims, are MEANT TO DO is:

                  pre-empt.

                  That very “pre-emption” IS at the heart of the shared exchange between two parties in the Quid Pro Quo.

                  IF the Court is “really concerned” with the scope of what is being pre-empted, the place for addressing that is NOT with 35 USC 101, but instead is within 35 USC 112.

              2. Lordy what a pretentious potluck of banal writing. Where in the patent law does it suggest that a district court should not determine what an invention is ‘directed to’.

                Oh, that’s an unwritten result of the usual canons of statutory interpretation? That was in the mind of the actors of ’52?

                Please….

            2. …and let me take a step back and add to your comment of:

              but has even allowed the PTAB to decide, citing the Supreme Court’s decision in Alice for support, that an MRI machine, i.e., a machine”, is an “abstract idea’ and therefore “patent ineligible”.

              Which in reply to Martin’s insufficient and thus incorrect reply of “Rational the infringement comes from assembling those atoms- they remain compositions of matter.

              in that not only are avowed machines (and improvements thereof) being deemed “Abstract” by the courts following what the Court did in Alice, but that the Court IN Alice deemed claims that were not even at issue as to passing the statutory category test of 101 (being machines) – and should be noted as passing the utility requirement of 101, which was not at issue – as both sides to the matter before the Court stipulated to the fact that some of the claims were machines.

              Martin’s “premise” does not even address the case that he derives his premise for.

        2. Rational, the point of executing a process is to produce a result. If you patent a new process to make a composition of matter, nobody infringes your patent when they think about the process, describe it, draw it, etc. They infringe when they use the process to make something of economic value.

          Of course every process is abstract when described with words. Everything described with words is abstract, because words are symbols. The infringement is not abstract because there is a pill to swallow at the end. How difficult is that to understand?

          Meanwhile, if the valuable result is an item of information, the value will be realized by the use of that information toward some immediate purpose. That information result remains 100% abstract.

          Meanwhile “described at the level of an idea” is some admixture of 102/103 and 112 where you just don’t have an invention in hand. Sometimes its not quite non-obvious enough, or not quite indefinite enough, or done before in some senses (i.e. “do it on a computer”) where none of the three are enough, but all of them are. That’s why eligibility happens at at least two levels- a course subject matter filter and a finer relationship of the subject matter to the novelty it claims- IOW, patentability.

            1. (Martin, you also appear to be falling to the Ned Heller fallacy that “process” is a handmaiden of the hard goods categories. That is just not so.)

                1. I rely on plain logic: a process without a result cannot be a “process”. The concept of a result is the sine qua non of a process.

                  My point is that if the result is a) non-physical and b) informational than a simple test is at hand to determine patentable abstraction.

                  “Process” need not mean hard goods, but it cannot mean any result under the sun is subject to patenting.

                2. Ned,

                  Is the “authority” you rely upon, i.e. the Supreme Court’s technologically and scientifically illiterate and lawless decisions relating to patent eligibility under 35 USC 101?

                  That “authority” has helped damage the U.S. patent system sufficiently that the U.S. “now ranks 10th, tied with Hungary, in terms of patent rights according to the U.S. Chamber of Commerce’s 2017 IP Index:

                  link to ipwatchdog.com

                  Also, as noted in the above-linked article, China which now leads the world patent application files, seems to be going in the opposite direction from direction proposed the all-wise(?) authority you rely upon:

                  “Late in 2016, China announced revised patent examination guidelines which relaxed barriers to patents for software and business method technologies and those revised guidelines went into effect this April. This July, SIPO announced new regulations which created streamlined processes for the examination of patent applications in certain fields including Internet, big data and cloud computing.”

                  So do you think the “authority” you rely upon is produced by people who are”smarter” than the Chinese officials who are embracing the patenting of software and business method technologies?

                3. A Rational, ? You need to get a grip.

                  Process means Art, and Art was in the original statutes. Thus process means what Art meant back in 1790 together with any additional clarifications provided by the Supreme Court since.

                  What Art meant back in the day was the way things were made as opposed to the thing themselves. The Statute of Monopolies had limited patentable subject matter to new manufactures. However the case law had extended the scope of patentable subject matter to include processes for making manufactures.

                  Congress never changed the basic fundamental patent statute in any fundamental way since 1790, with the sole exception of 1793 that added “new” and “composition,” therefore there is no fundamental change in all that time.

                  If you read Curtis, you will get a better understanding of what those at the time understood Art to mean.

                4. A rational, but the patent was on the process, to wit, “burning the raw ashes previous to their being dissolved and boiled in water,” in the overall process of making both Pearl and Pot ash.

                  It is interesting that the very first patent used the term “process” and not “Art.” I think that is because the British uniformly used the term process and not Art. The British practice prevailed in the United States.

                  Of course, “discovery” was then in the statute, as it was in the Constitution. But the scope of the claim is not to the discovery in isolation, but only to a process for carrying into effect the principal of the discovery. The process of making Pearl and pot ash were both known. The improvement was specific – burning the raw ashes in a furnace prior their being dissolved in boiling water. The overall process was thereby improved.

                  There is nothing remarkable in this. The claim clearly passes Alice.

                5. Ned states:

                  Process means Art, and Art was in the original statutes. Thus process means what Art meant back in 1790 together with any additional clarifications provided by the Supreme Court since.

                  But Ned has NEVER engaged in a conversation about what Congress did in the Act of 1952 vis a vis 35 USC 100(b).

                  It is NO accident that Ned refuses to engage in the actual controlling law – actual controlling law that does NOT support what he wants the law to be.

                  (he also does not reflect upon 35 USC 100(a) – but that point as already been put on the table for discussion, awaiting Ned’s engagement, sitting there all alone and forlorn.)

                6. Another problem with focusing so much on what was meant by various terms in the 1790 law is what the people of 1790 understood about science and technology. For example, on of the reason that early patents involving chemistry focused on the processes of making materials was the fact that the science of “chemistry” as we know it today, largely did not exist in 1790, i.e., no Periodical Table, no understanding of chemical structure. An inventors may have known the ingredients he mixed together and the steps he performed, but he did not know a lot about the chemical structure of the what his process produced.

                  For example, Antoine Lavoisier’s Traité élémentaire de chimie (Elementary Treatise of Chemistry), the first chemistry textbook, was first translated into English in 1790.

                  link to en.wikipedia.org

                  But even Lavoisier only knew 33 elements and could only group them into gases, metals, nonmetals and earths. Mendeleev did not create his table of elements until the 1860s.

                  link to en.wikipedia.org

                  Kekulé developed his theory of chemical structure in the 1850s.

                  link to en.wikipedia.org

                  So what people understood about “processes” and “compositions” by even the 1860s was vastly different than what people understood about “processes” and “compositions” in 1790.

                  So whether the “words” of the law of 1790 or 1793 changed or not from 1790 to 1952, what people understood those words to mean did change, even during the 19th century.

                7. It is true that science has changed vastly since the 19th century, the most important figures in this change being James Clark Maxwell, Ernst Mach, Georg Ferdinand Ludwig Philipp Cantor, Albert Einstein, Erwin Rudolf Josef Alexander Schrödinger, and Werner Karl Heisenberg.

                  Yet the way we think about knowledge has changed much less since the 18th century. SCOTUS’ view of knowledge has not changed at all since the 18th century, but the justices today are much less familiar with the primary souces on the theory of knowledge than earlier jurists were.

                  That is a good thing because the scientists of approximately 50 years in the future will marvel that the scientists of the early 21st century had so many misconceptions.

                  Keep in mind that the scientists of the 1930s thought they were developing a true understanding unlike all the misconceptions of scientists 100 years earlier.

                  Note that this song was composed in 1934.

                  link to youtube.com

              1. Anon,

                It’s not as if 35 USC 101 used expansive and inclusive language such as:

                Whoever invents or discovers any new and useful process . . .
                or any new and useful improvement thereof . . . .

                Oh wait a minute, 35 USC 101 did use such expansive and inclusive language. Who knew?

                Also given that cash registers, tabulators, i.e., machines that did not produce much in the way of “hard goods, etc. were long held to be “patent eligible” as being “useful” it seems pretty inconsistent to hold the methods practiced by these machines as being “patent ineligible” and “not useful.”

                Something else that gets left out of most discussions of 35 USC 101 is what most patent professionals thought one of its purposes was for decades, i.e., to distinguish what was “patentable” from what was “copyrightable.” Note how the language of what is copyrightable under 17 USC 102 appears to exclude things, such as an “idea” or a “discovery”, that were generally regarded as being patentable, prior to the Supreme Court’s decision in Alice:

                link to bitlaw.com

                §102 SUBJECT MATTER OF COPYRIGHT: IN GENERAL

                (a) Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship include the following categories:

                . . .

                (b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work.

                1. Ned,

                  I’m looking at what was actually claimed in US Patent X1 back in 1790 which effectively claims a process as a “Discovery” of a law of nature, i.e., the inventor’s discovery that “burning the raw ashes prior to dissolving and boiling the ashes in water provides a better yield of potash and pearl ash

                  “These are therefore in pursuance of the Act, entituled “An Act to promote the Progreſs of useful Arts”, to grant to the said Samuel Hopkins, his Heirs, Administrators and Aſsigns, for the Term of fourteen Years, the sole and exclusive Right and Liberty of using, and vending to others the said Discovery, of burning the raw Ashes previous to their being diſsolved and boiled in Water, according to the true Intent and Meaning, of the Act aforesaid.”

                  link to en.wikisource.org

                2. “There is nothing remarkable in this. The claim clearly passes Alice.”

                  By may not pass Mayo:

                  The method “merely” applies a discovered “natural law” that “burning the raw ashes in a furnace prior their being dissolved in boiling water” improves yield. Burning, dissolving in water, boiling, etc. were conventional steps. so once you eliminate the convention steps, all you have is the application of a natural law, which is patent ineligible under the reasoning of Mayo.

                3. A rational, while burning things might have been conventional, burning things at a particular point in a particular process is what is being claimed in the 1790 patent and what the patent is covering. There is no possible way that one can believe that Supreme Court in Mayo would have held this patent to be ineligible.

                  What the courts are looking for is simple: a new or improved manufacture – where manufacture it is understood to mean machines, manufactures, compositions and processes. There is little doubt that the claim in the 1790 patent improved a conventional process. There is little doubt that the claims in Mayo did not.

                4. as manufactures

                  You did not stutter.

                  I understood exactly what you wrote – but what you wrote is bizarro and is simply NOT in accord with the law as written by Congress.

  5. Although this is slightly off topic, I personally think that laws of nature should be given some sort of intellectual property protection that is extended to all device that use or are based on that discovery.

    As for the argument that that may impede research and development, change the laws to expressly exclude research and development from the gamut of activities for which one can sue for infringement. It is not a perfect solution, but I like it better than the current state of affairs (similar to what others have said in this Blog, so what, if all the claim says is “apply it”?).

    1. David, but the constitution? Patents could only be given to inventors.

      1. See 35 USC 100(a).

        This is not a new point presented to you Ned.

      2. A bit of a tangent, but Ned, you may be interested in the “inventorship/ownership” aspects of a case being reported at the PatentDocs (involving the university associated with Prof. Crouch):

        link to patentdocs.org

        Interestingly, note the State-by-State permutations that may be generated with “and explained that ‘[t]o the extent that Mr. Suppes is arguing that the contract is void as a matter of public policy, that is once again a matter of state contract law.’

        1. anon, we discussed this case some time ago.

    2. change the laws

      Go for it. Be sure to have some good arguments, too.

  6. The real flaw in the Supreme Court’s analysis is before step one: 6-thioguanine is a man-made chemotherapy drug. It’s thermodynamically unreachable by natural forces. While, conceivably, I imagine that single molecules could have formed spontaneously, there has never been a measurable quantity of 6-thioguanine extant in nature, never in the history of the universe.

    There are no “laws of nature” involving 6-thioguanine.

    Of course the mechanism described in Prometheus’ patent works by natural processes. All functional inventions work by natural processes. The exceptions, inventions that work by supernatural processes, are too unpredictable to satisfy the “utility” requirement.

    The problem with Mayo v. Prometheus is that if this is a “law of nature,” then everything is a law of nature.

    1. Do you remember the World War II dub-over comedy clip posted on this blog after the Mayo decision?

      One secretary to another in the hallway as Der Fuhrer rants on: “Don’t worry, business methods are not laws of nature.”

    2. Because modern judges misapply the terms “abstract idea” or “concept” from misremembered elementary school grammar instead of using comprehensible epistemological terms from at least the early modern thinkers like DESCARTES, Locke, Hume, or Kant, no one should be surprised that they use “law of nature” when “natural phenomenon” is meant.

      We should also distinguish between φρόνησις and τέχνη, but most people don’t know Aristotle or master classical philosophic Greek.

      Everything is natural phenomenon. Structures like a human being evolve or develop in accord with the laws of nature and because of them. A human being is a natural phenomenon.

      If a human being creates an invention, he creates it in accord with the laws of nature and because of them.

      Thus any human invention is itself a natural phenomenon.

      I believe I can map SCOTUS’ 101 guidance into a rational epistemological framework that can be used as the introduction to a brief or to a memorandum and from which winning arguments can be made.

      I will try to do that sometime next week.

      (This effort is something new to me. I usually write technology memos that lawyers then apply to their cases. I apologize beforehand if the result is somewhat deficient.)

      I hope anon consults Plato’s Parable of the Cave before he tells me once again that 35 USC 101 is purely a matter of law.

      BTW, I apologize for the duplicate image, but it is important to emphasize how silly the 101 eligibility discussion has become.

      1. Joachim —

        As you’ve framed it, this line might be interesting to a philosopher, but it won’t be enlightening in the legal framework. Any useful discussion of any topic has to start by each discussant taking on the frame of reasoning and discourse of the relevant field.

        I think what we all understood before Myriad and Mayo was that the “law of nature” exception was the inverse of “anything under the sun made by man.” In the patent law, at least for section 101 purposes, humans are not “nature.”

        Now of course, any human invention can only work if it works with nature.

        For instance, swinging a hammer at a nail only drives the nail because of the natural repulsion forces between all the atoms of iron. But the nail and the hammer are each formed with human intervention or action, and that human intervention is what brings the hammer and nail as eligible subject matter.

        1. THIS:

          Any useful discussion of any topic has to start by each discussant taking on the frame of reasoning and discourse of the relevant field.

          is exactly what I mean Joachim when I chided you about over-indulging in philosophy at the expense of 35 USC 101 being a legal point.

          Your background is somewhat unique and you have a certain way of seeing things that may indeed be helpful – if you can translate them into the legal venue (as opposed to trying to translate the legal venue into being one of a philosophical venue).

          This is not something that is a “matter of philosophy” as much as it is a “matter of law.”

          So yes, my earlier chiding of you in regards to 35 USC 101 remains (with or without Plato’s Parable of the Cave).

        2. I understand this point, but I have also read the early decisions with respect to “abstract idea” doctrine. Some of them address the modern patent law usage of indefiniteness, but other times they are implicitly assuming the epistemological framework(s) of Descartes, Locke, and Hume — not so much Kant, who was later and written in German.

          As the Courts have wandered away from early modern epistemology (as philosophy became less studied among Americans), the law of eligibility has become gradually more incoherent and possibly logically inconsistent.

          I understand that patent laws treat humans as distinct from nature. I apologize for lack of clarity. I did not mean to direct people to the issue of the human being but to the Aristotelian distinction between τέχνη or mere workmanship (the guy with the hammer) and φρόνησις or intellectual creation as Aristotle used the term philosophically.

          Both are natural phenomena but not laws of nature.

          Moreover the creation of structure can be either natural like a mitochondrion or human like for example the Jacquard loom wherewith modern programmed computation starts in 1804.

          If I presume to think momentarily for Kant, Kant would describe the mitochondrion as prior synthetic knowledge (ineligible under 101) and the Jacquard loom as posterior synthetic knowledge (eligible under 101 as long as it is novel).

          Here is where US 101 eligibility law becomes incoherent because modern Americans including lawyers and judges don’t know Plato, Aristotle, Descartes, Locke, Hume, or Kant.

          Now I don’t understand why I shouldn’t use early modern epistemology to clarify 101 issues as I use science and engineering to clarify 102, 103, and 112 issues. 101 eligibility is fundamentally an issue of classifying knowledge or combinations thereof. This issue belongs to epistemology.

          In any case, by going back to the foundational decisions of “abstract idea” doctrine — I hate this usage of the phrase “abstract idea”, I believe I can create exemplary rationales (both legally and also epistemologically acceptable) for 101 eligibility as exist for 112 obviousness.

          BTW, understanding the necessary epistemology is no harder than understanding basic biology, biochemistry, mechanics, pharmacology, electromagnetism, solid state physics, civil engineering, mechanical engineering, electronic engineering, software engineering, automotive engineering, aerospace engineering, or medical engineering. Patent lawyers and patent agents work in all these technological arts.

          I always keep in mind that no one I have taught understood some fairly complex graph theoretic concepts faster than a lawyer, who did not specialize in technological IP and had background in neither math, the sciences, nor engineering.

          1. Now I don’t understand why I shouldn’t use early modern epistemology to clarify 101 issues as I use science and engineering to clarify 102, 103, and 112 issues. 101 eligibility is fundamentally an issue of classifying knowledge or combinations thereof. This issue belongs to epistemology.

            The answer to your question lies in the contrast between two parts of the rules of the game, the postulates that define our domain of discourse —
            — on issues of fact, the things we think of as “natural science” are relevant.
            — on issues of law, none of Plato, Aristotle, Descartes, Locke, Hume, or Kant ever had a seat on the Supreme Court or Federal Circuit. They’re interesting commentators, but at the end of the day, don’t mean much in this domain.

            Joachim, to play, you’ve gotta play on the right turf. None of us have the power to reinvent the practice of law.

            1. I was thinking that you were going to reply exactly in this way about issues of fact and issues of law.

              The question of 101 eligibility is mostly an issue of fact (“How do we classify knowledge?” like “How do we classify species?”) and not an issue of law.

              Treating 101 eligibility as a matter of law creates chaos.

              I know that English-speaking lawyers probably don’t think of philosophical questions as matter of fact, but such is exactly what they are in questions of knowing and perception. Such questions have been addressed by practically all natural philosophers (nowadays we call them scientists) from Aristotle to Hawking, Penrose, or Witten today.

              We have an accidental problem in English because the word knowledge (Wissen in German) derives from Anglo-Saxon while science (Wissenschaft in German) derives from Latin scientia.

              In Latin scire is knowing (like Wissen, which is also an infinitive) while scientia is science.

              Thus in Latin and German science and knowledge or knowing are self-evidently related paronyms, and questions of fact.

              All the great physicists since Schrödinger and Heisenberg have struggled mightily with the nature of knowledge and of perception as matters of fact. Mapping quantum physics results onto classically perceived phenomena was particularly unnerving to many physicists of the early 20th century.

              To make the point clearer that classifying knowledge is a matter of fact, I focus on claiming analytic formulas.

              As I read the decisions, I have the impression that SCOTUS holds invalid a claim that is no more the computerization of a pencil and paper calculation.

              In other words a 101-eligible claim may not be directed solely to an analytic formula for solving a problem that is effectively calculable, but if the metes and bounds of a claim define a combination of knowledge that intrinsically combines significant novel posterior synthetic knowledge, that claim is 101-eligible.

              Here are the relevant decisions.

              Gottschalk v. Benson, 409 U.S. 63 (1972)
              Diamond v. Diehr, 450 U.S. 175 (1981)
              Bilski v. Kappos, 561 U.S. 593 (2010)
              Alice Corp. v. CLS Bank International, 573 U.S. __, 134 S. Ct. 2347 (2014)

              Mathematics (issue of fact) gives me a formalism for addressing and deciding effective calculability.

              Yet it probably is not a good idea for judges, lawyers, or jurors to deal directly with effective calculability or the lambda calculus.

              Effective calculability proven consequentially in a mathematical framework is pure analytic knowledge and a matter of fact.

              While enablement for a PHOSITA is matter of law, written description including possession is a matter of fact.

              Early jurists tend not to distinguish eligibility from clarity of written description and definiteness of claims because for said jurists, these issues were all matters of fact.

              Epistemology especially Kant gives us a handy shorthand to discuss classifying knowledge as a matter of fact so that judges can give juries simple easily understood instructions on which they may make factual determinations.

              Here is how the decision process could work.

              [I may be fuzzy on some of the trial aspect. While I have provided expert consulting in infringement cases since 2006, I have never been to one of the trials.]

              1. Claim construction is a matter of law. The Judge may allow a Markman pre-trial hearing.

              2. After claim construction, I believe the judge decides enablement as a matter of law.

              3. Then the Plaintiff and Defendant present arguments about disputed facts relative to invalidity.

              [#4 is the modification for which I see a need.]

              4. What types of knowledge the metes and bounds of each claim encompass: prior, posterior, analytic, or synthetic, and how intrinsic the knowledge combination is. I think this could be handled by a questionnaire.

              5. Anticipation. I think this is completely a matter of fact.

              3. Factual issues of obviousness. I think this can be handled by a questionnaire.

              4. Clarity and conciseness of the written description (including possession). I think this is completely a yea or nay factual determination.

              5. Definiteness of each claim and whether each embodiment claimed actually has support in the specification. Sometimes a biotech or pharmacological claim encompasses many more embodiments than are actually enabled. This question was also an issue of Lizardtech, Inc. v. Earth Res. Mapping, Inc., 424 F.3d 1336 (Fed. Cir. October 4, 2005).

              6. Then the Judge decides matters of law that require Jury input on facts.

              7. If the Judge has not ended the trial on the basis of matters of law, then the actual question of infringement is tried.

              8. The Jury comes to a verdict.

              9. Then the Judge decides whether there is any clear error that requires JMOL, which differs from the Jury verdict.

              10. The sentencing phase.

              1. The question of 101 eligibility is mostly an issue of fact (“How do we classify knowledge?” like “How do we classify species?”) and not an issue of law.

                Not even close.

                1. I meant to say that as with obviousness determination eligibility determination may require investigation of issues of fact that prevent summary judgment as a matter of law.

                  Both the question of effective calculability and the question of protocol versus algorithm seem to be questions of fact.

                  I think the judges were correct in the following cases, but I am not sure whether it should have been addressed (implicitly) as a matter of law by the judge.

                  Gottschalk v. Benson, 409 U. S. 63, 67 (1972)

                  Diamond v. Diehr, 450 U.S. 175 (1981)

                  Alice Corp. Pty. Ltd. v. CLS Bank Intern., 134 S. Ct. 2347

                  Bilski v. Kappos, 561 U.S. 593 (2010)

                  In re Alappat, 33 F.3d 1526 (Fed. Cir. 1994)

                  Cal. Inst. of Tech. v. Hughes Communs., Inc., United States District Court for the Central District of California, Western Division, November 3, 2014, Decided; November 3, 2014, Filed, Case No. 2:13-cv-07245-MRP-JEM

                  I am not so sure that the CAFC is correct in the case of DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (F. Cir. 2014), in which I believe there is a genuine issue of fact that should be argued before a jury, and I have to admit that I might be able to be persuaded one way or the other (despite what I wrote and which the USPTO added to its website).

                  link to uspto.gov

                  BTW, I know that I could write a claim to an algorithm that looked so much like a claim to protocol that it would be hard to dismiss the claim as ineligible without some factual investigation and maybe arguments before a jury.

              2. When you get a seat on the Supreme Court and get four other people to agree with you, then you can change the rules.

                Until then, sorry, I’m putting you in the no response box with anon and mm. You’re more interesting and courteous than those two, but as disconnected from practicality. No value to continuing the discussion.

                Nice knowin’ ya.

                1. Until then, sorry, I’m putting you in the no response box with anon and mm.

                  With all due respect, Bite Me.

                  I “get” that you are following the (rather odd – and singularly so) precepts of the the attorney code of the Commonwealth of Massachusetts and treating a certain branch of the government as “a client” and NOT holding them accountable under the checks and balances that a true understanding of the triumvirate system of government demands (each – and every – branch subservient to the Constitution), but your choice of “dismissal” is in NO WAY aligned with what is – or what may be – “disconnected from practicality.”

                  Abdication (your way) is simply no defense for following the ethical guidelines most every other state imposes on attorneys.

                  Of course, you are free to engage (or not) whenever you “feel” like it – but to be so in error on your preachiness only makes you come across as an arse.

                  What you deem as “value” is not nearly as limited as you would proclaim. Plenty of value in seeing exactly what makes you run away from an otherwise entirely cogent legal position You say more than you might think that you do in choosing which matters NOT to engage in – and why (and ‘courtesy’ is NOT the only factor, so your only too-broad brush of lumping me with Malcolm is evidence against you).

                2. When someone says “with all due respect”, respect is invariably the last thing intended.

                  In any case, even if Boundy is being rude, there is no obvious reason to reciprocate. He is nationally respected for his expertise in Administrative Law, and I certainly don’t know enough (yet) to throw rocks.

                  I think I may be misexplaining myself. I am not advocating adding epistemology to the law. I am advocating creating a hearing in which epistomologists, many if not most of whom are physicists or mathematicians or occasionally biologists can provide evidence with respect to eligibility.

                  I hate watching the train wreck that is destroying the US Patent System.

                  Gene Quinn seems to be aghast that eligibility can be decided without an evidentiary hearing. See More software patent eligible, Federal Circuit says lip synchronization not abstract.

                  At the outset of the Federal Circuit discussion, Judge Reyna noted that in this case the claim construction carried out by the district court was “helpful to resolve the question of patent eligibility under § 101.” This statement almost sounds out of place until you realize that most times district courts do not engage in a claim construction analysis prior to determining whether the claims are patent eligible. It is astonishing that any court could ever even attempt to determine whether a claim is patent eligible because it merely covers an abstract idea without first engaging in a thorough analysis of what the claim actually covers. Merely looking at a claim on its face and pretending to be able to divine what is covered is the type of analysis one would expect from the utterly uninformed, not something that ostensibly passes for justice.

                  Unfortunately, while the Markman hearing was probably helpful, the CAFC probably ruled incorrectly according to SCOTUS’ Alice/Mayo two-step test because no evidence for or against eligibility was offered in District Court.

                  The first step to fixing the problem of presenting evidence for or against eligibility seems to cost relatively little effort and amounts to the submission of a proposal to the Judicial Conference by lawyers and judges of substantial stature.

                  I must add in order to emphasize the need for such an eligibility hearing that Enfish v. Microsoft is probably correct but for the wrong reason.

                  The decision says the following.

                  “the claims at issue in this appeal are not directed to an abstract idea within the meaning of Alice. Rather, they are directed to a specific improvement to the way computers operate, embodied in the self-referential table.”

                  The claim encompassed an improvement to the database data structure and not a specific improvement to the way computers operate — a tremendous difference, but there was no expert report or evidence that addressed the issue and that was provided to the CAFC.

                  DDR Holdings, LLC v. Hotels.com, L.P., 773 F.3d 1245 (F. Cir. 2014) is also probably incorrect according to SCOTUS’ Alice/Mayo two step test. With an eligibility hearing, there would have been much less possibility of error.

                  Ned Heller’s proposal to remove the PTAB from the USPTO and to make the APJs into ALJs under the authority of district court magistrates seems good, but I think it would take a legislative act and approval by the President — much harder than creating an eligibility hearing in district court.

                  As for the Kantian matrix, it’s a very convenient way to summarize the evidence so that the District Court judge can apply the Alice/May two step test,

          2. More to David’s (continued point – as an offshoot of my own):

            101 eligibility is fundamentally an issue of classifying knowledge or combinations thereof. This issue belongs to epistemology.

            No.

            You are again trying to play on the wrong ball field.

            I “get” that you find the tools that you know would be “helpful,” but you are trying to change the law domain into being a philosophy domain – and that is just not correct.

            1. I realize now that mono-lingual speakers of contemporary English may have a problem in identifying matters of fact that stray into areas of philosophy beyond natural philosophy (nowadays called science).

              The period 1750-1850 was transitional when “science” replaced “natural philosophy.”

              From link to etymonline.com

              From late 14c. in English as “book-learning,” also “a particular branch of knowledge or of learning;” also “skillfulness, cleverness; craftiness.” From c. 1400 as “experiential knowledge;” also “a skill, handicraft; a trade.” From late 14c. as “collective human knowledge” (especially that gained by systematic observation, experiment, and reasoning). Modern (restricted) sense of “body of regular or methodical observations or propositions concerning a particular subject or speculation” is attested from 1725; in 17c.-18c. this concept commonly was called philosophy. Sense of “non-arts studies” is attested from 1670s.

              A side note that may amuse David Boundy, who I believe has offices in Cambridge, MA. Andrew Gleason, who taught Math 55 when I took it, held the Hollis Professorship of Mathematicks and Natural Philosophy.

              If I am not mistaken, the Hollis Professor had the right to pasture a cow on the Cambridge Common. In the Boston area, public parks are often called commons.

    3. David,

      Thank you for pointing this out. As I’ve said elsewhere downthread, Mayo v. Prometheus was a lawless interpretation of 35 USC 101 based on ignorance of the Supreme Court justices with respect to science, U.S. patent law and the history of patents in the U.S.

      It is to the eternal shame of any attorney who has ever written an article supporting the Supreme Court’s decision in Mayo v. Prometheus to have ignored the fact that “There are no “laws of nature” involving 6-thioguanine.”

    4. Dave, what the Court specifically said in Mayo v. Prometheus is copied below after their earlier in the case suggesting that administering that particular drug was not new:
      “While it takes a human action (the administration of a thiopurine drug) to trigger a manifestation of this relation in a particular person, the relation itself exists in principle apart from any human action. 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. “

      1. SCOTUS should have written, “And so a patent that simply describes that relation sets forth a NATURAL PHENOMENON.”

        This continual confusion between “natural phenomenon” and “natural law” tells us that SCOTUS is possibly unconsciously following the framework(s) of early modern epistemologists, who in Kant’s language would have described a “natural law” and a “natural phenomenon” as prior knowledge.

        BTW, nowadays we describe Descartes as a philosopher, mathematician and scientist. Descartes would have used one term to describe himself. That term would have been philosophe or philosopher.

        1. SCOTUS should have written, “And so a patent that simply describes that relation sets forth a NATURAL PHENOMENON.”

          You’re right.

          But it doesn’t make any difference. As I recall, the case uses other phrases (e.g., “correlation”) more frequently than the term “natural law” to describe what is being protected by Prometheus’ junk patent.

          This rule is never going to change, by the way. That’s something that both you and David Boundy need to come to terms with.

          1. I guess MM did not catch that David Boundy and I have opposite opinions on the Prometheus’ patent. I don’t know about David, but I have done medical research and studied treatments.

            A claim to a method whose steps encompass no more than

            1. detecting a natural phenomenon (X) by known means (Y),
            2. inferring the patient state (Z) on the basis of results and standard knowledge, and
            3. applying a known standard treatment (T) that is appropriate according to the known standard knowledge of the patient state (Z)

            may have defined the metes and bounds of a new invention when the centaur Chiron taught medicine to Asklepios and Greek doctors stopped doing witch doctor dances, but today substituting for X, Y, Z, and T is completely mechanical (derivable analytically or from the principles of medicine).

            Because SCOTUS recognizes that 103 does not deny the inventor a claim under KSR, SCOTUS uses 101 to deny the claim.

            Should a patent claim be granted for a completely mechanical procedure of medical science? If you think so, you might have to work for a legislative or maybe even a constitutional change.

      2. Paul,

        6-thioguanine, as David Boundy points out, is a synthetic drug.

        So, as David points out” “The problem with Mayo v. Prometheus is that if this is a ‘law of nature,’ then everything is a law of nature.

        Of course the mechanism described in Prometheus’ patent works by natural processes. All functional inventions work by natural processes. The exceptions, inventions that work by supernatural processes, are too unpredictable to satisfy the “utility” requirement.”

        I don’t think you can provide a single example of a chemical or biological process claim in any issued patent that is not an application of a “law of nature” based on the strict reasoning of Prometheus.

      3. Paul —

        I know they said that. It’s ignorant gibberish. Almost all inventions work on the principle that “human sets up a desired configuration, and then allows nature to carry out the rest.” What else is there?

        The reaction of a nail to being pounded by a hammer is a “relation [that] itself exists in principle apart from any human action.” Diamond v Diehr’s press was a “relation [that] itself exists in principle apart from any human action.”

        1. While I agree with your point here David, you sound very much like those that you would chastise as being ” disconnected from practicality.

          So what if the Royal Nine “ they said that. It’s ignorant gibberish“….? Of what use is your posting anything in disagreeing with them? [irony intended]

          Since when did youget a seat on the Supreme Court and get four other people to agree with you“…?

          Please, do try to be a little less two-faced on the topic of the Supreme Court and what they do with patent law.

          1. Anon —

            I’m not trying to upend the entire structure of legal inquiry in the United States (the “meta rules” if you will). Just trying to get the rules themselves back on track, while leaving the meta rules alone.

            Correcting one (well, four) poorly reasoned decisions is doable (after all, Diamond v Diehr reversed Parker v. Flook and Gottschalk v. Benson). Replacing the entire reasoning framework, as Joachim suggests, is not.

            But, if you’re the same anon, we’ve been down this road before. Your lack of understanding of legal reasoning in the U.S. is also flawed–flawed in a different way than Joachim’s, but flawed. And I won’t get sucked into trying again to help you understand. The wikipedia article on “common law” is pretty good.

            1. LOL – gee, my reasoning is flawed – or so you say – just as I correctly point out other things that you won’t touch (after my correcting you – for example, the fact that Void for Vagueness is not limited to matters of criminal law)

              You will have to excuse me if I do not take your word on your attempts to EITHER “correct me” or that my reasoning is flawed.

            2. Correcting one (well, four) poorly reasoned decisions is doable (after all, Diamond v Diehr reversed Parker v. Flook and Gottschalk v. Benson).

              My comment still holds.

              Another item you scoffed at – without providing any cogent reasoning to support your “feelings” – is my suggestion that the non-original jurisdiction of patent appeals could be – by proper authority of Congress – str ipp ed jurisdictionally from the Supreme Court.

              Look at a root cause analysis of the problem with 101.

              Four poorly reasoned decisions” (with MORE THAN ONE such items following the example of “correction” of Diehr should indicate to you that ANY such correction you attempt to advance “as a matter of practicality” will NOT suffice to correct anything.

              The root cause is the Supreme Court itself – and its legislating from the bench on a power it no longer has per the Act of 1952.

              But YOU have made it a point to believe that the Supreme Court is “Supreme,” even above the Constitution and the separation of powers.

              I asked for – and you did not provide – the state attorney oaths that you operate under. You did mention at least the Commonwealth of Massachusetts, and I provided both that state’s oath and a comparative analysis of that oath.

              “Lucky” for all of us, you deigned not to reply to the substantive points of that discussion, eh?

              Above, Joachim ‘treads softly’ and offers a degree of respect to you. That respect – in certain areas – is certainly due, and I have more than once praised you in certain areas and for certain efforts of yours.

              But blanket ‘respect’ is not due – especially when it is more than apparent that you are operating on (bruised) feelings and that you “deign” to engage in an incomplete manner.

              You lumping me in with Malcolm shows how little you understand the point at hand. When you are wrong, it is a doozy – and while you are quick to be dismissive and claim that I have a lack of understanding of legal reasoning, it is your own errors – and pride – that are on display.

              Btw, the wikipedia article on common law is indeed “pretty good,” but nothing there serves to show any flaws in my legal reasoning about the separation of powers. Perhaps you are being pedantic about the difference between interstitial and pure common law. Perhaps you should pay more attention to what I actually write.

  7. This correlation is not a “law of nature” so much as an item of information.

    Should new, useful information be eligible for patenting?

    “You can find fetal DNA in maternal plasma” is an item of information.

    An animated mouth is an item of information

    The correct quantities and rates of steering, braking, and accelerating for a given energy and inertia state of a car are items of information.

    The predicted value of a stock-option is an item of new, useful information.

    When entirely conventional means are used to process information, how should the patent system respond if the information itself is new and useful?

    1. The problem with your thinking is your reverse the process. Start from the claim as a whole. And, then ask is there some structure that is a problem? No? 101 is done. Yes. What is that problem? A yes should be an extraordinary situation.

      1. A yes should be an extraordinary situation.

        Stepping on a nail should be rare. Unless of course you are f cking around in a junkyard filled with nails.

      2. Except that leads to the patenting of actual laws of nature which will (and has) prevent further innovation using that principle of nature. No deal, Howie.

        Your way of thinking is dead. It is gone. Too many people want to avoid the problem I describe above. For years the patent community has whined about it without looking to solutions.

        What about this solution: in exchange for broader expansion of patent subject matter, we should harmonize with the rest of the world and only allow the patents to cover only the invention that is actually disclosed in the patent. No more “claims”, only specifications. Everything will be a “means plus function” test.

        What do you think? Why or why not?

        1. That proposal is so far from the development of patent law in Anglo-American jurisprudence that it makes me feel like vomiting, and IANAL.

    2. The proper combination/assembly of atoms to achieve a drug that reduces the amount of cholesterol in your blood is an item of information. What of it?

      1. The proper combination/assembly of atoms to achieve a drug that reduces the amount of cholesterol in your blood is an item of information. What of it?

        You can’t protect the information with a patent.

        1. You can’t get a patent on “the proper combination/assembly of atoms to achieve a drug that reduces the amount of cholesterol in your blood?”

          Then I have been grossly overcharged for Crestor!

    3. You should add to your list: “When to open a rubber-molding press as determined by applying the Arrhenius equation to temperature measure by a thermocouple” is an item of information.

      1. Yes it is an item of information. In my view, the press is the non-human consumer of the information, and it should be eligible. It should also be obvious, as the bar for obviousness with information inventions is intrinsically higher because information is intrinsically more malleable than physical structure. I cover the case in the paper I linked for David below.

        1. because information is intrinsically more malleable than physical structure.

          A machine (in your admission here, the consumer) does not magically treat one or the other.

          Your “intrinsically more malleable” as an attempted tie to obviousness is – like the rest of your paper – unmoored to any real appreciation of the la.

    4. Martin —

      Same note I just wrote to Joachim at 12.2 — there’s an established framework, and you don’t move the ball unless you start by placing yourself in that framework.

      The difference between “idea/information” and anything else is relevant to the “abstract idea” exception, but a non sequitur in a “law of nature” discussion.

      1. David you can’t talk about the applications or evolution of the exceptions with a bright clean line between them. The mechanisms that activate “natural law” are similar to “abstract idea” and all turn on notions around how eligibility and patentability interplay.

        Did you ever read this?

        link to papers.ssrn.com

      2. Isn’t the incompleteness of the current framework for addressing eligibility part of the current chaos on 101-eligibility? Some of the DCs permit the parties to introduce evidence relevant to the question of eligibility while others don’t.

        In order to address the issue of presenting evidence, Data Treasury filed a petition for writ of Certiorari in the Supreme Court of the United States on 01/11/2017 in the case of DataTreasury Corporation v. Inc. Fidelity National Information Services, but the petition was denied.

        Like me Martin is suggesting that a Markman hearing also consider evidence of eligibility.

        The Alice/Mayo analysis is an epistemological investigation — to my mind a somewhat crippled investigation, but this situation exists elsewhere in the Law. Lawyers and judges don’t address mental disorders as psychiatrists do, and the DSM is not a matter of law, but there is a way to introduce psychiatric testimony and evidence into court.

        Scientists since Aristotle (when science was a subarea of philosophy) have been addressing knowledge classification, which is precisely what the Alice/Mayo Test is supposed to investigate.

        I am not sure Martin’s analysis gives the proper results. From the description in his paper, I have the impression it would find invalid the genetic fingerprinting patents discussed in 4.1.5.1.3.

        I am suggesting something far less radical:

        1) identify the types of knowledge (prior, posterior, synthetic, analytic) encompassed by the metes and bounds of each claim

        2) provide evidence relative to how intrinsic and significant any synthetic knowledge encompassed by each claim is.

        This information maps easily into the Alice/Mayo Analysis, which the judge can then make.

        The simplified Kantian framework is not necessarily obligatory, but Kant arguably completes early modern epistemology, which early jurists were applying at least implicitly.

        Later thinkers like Georg Cantor (mathematician), Kurt Gödel (mathematician and logician), Ernst Mach (physicist and philosopher), Ferdinand de Saussure (linguist and semiotician), Alonzo Church (mathematician and logician), Alan Turing (computer scientist, mathematician, logician, cryptanalyst, philosopher, and theoretical biologist) et al. have made more recent contributions to epistemology, but Kant has probably been the starting point for modern mathematical and scientific thinking. (I know some would argue with me, but just consider the flourishing of math, science, and engineering in the German-speaking world after Kant.)

        1. Isn’t the incompleteness of the current framework for addressing eligibility part of the current chaos on 101-eligibility?

          No.

          The chaos is induced directly because the Supreme Court is mashing the nose of wax of the statutory law of 101.

          You are STILL trying to hard to make this a “philosophy” issue when ALL that it is is a LEGAL issue.

          1. Please consult Boulton & Watt against Bull, Saturday May 16, 1795.

            link to scribd.com

            See in particular the footnote (a) 1.

            It seemed admitted that there under the statute 21 Jac. I. c. 3, s. 6, there cannot be a patent for a philosophic principle only, which has since been held in the case of Rex v. Wheeler, 2 B. & A. 345.

            The distinction that you make between philosophy and science does not really exist in the area of epistemology today.

            The distinction certainly did not exist for the early jurists in patent law.

            Modern judges and lawyers no longer understand early jurists. Consequently this area of law has become incoherent.

            The problem can be addressed either by extending the Markman Hearing to allow evidence of eligibility or to hold a separate eligibility hearing.

            As I keep pointing out, certain aspects of the eligibility question are highly mathematical, but not necessarily incomprehensible if experts present evidence.

            We have a similar situation with regard to the insanity defense, and there is a great deal of variation among the states, but most jurisdictions can allow psychiatric evidence and testimony — rather less scientific to my mind than epistemological evidence and testimony.

            Before TC Heartland LLC v. Kraft Foods Group Brands LLC, No. 16-341 (S. Ct. May 22, 2017), when the DCEDTX tended to provide the venue and the jurisdiction, the incoherence was less of a problem. Now in patent law we have the same problem that occasioned Erie Doctrine.

            1. The distinction that you make between philosophy and science does not really exist in the area of epistemology today.

              “epistemology today’

              You reveal much in how you word this!!!

              You are STILL trying to play in the wrong ballpark.

              I “get” that you really do understand all of this epistemology stuff.

              I really do.

              But you are trying to make everything a nail with your philosophical hammer.

              Modern judges and lawyers no longer understand early jurists. Consequently this area of law has become incoherent.

              We both agree on the state of incoherence.

              I am merely trying to impress upon you that this is a legal issue – and the problem that creates this legal issue is a Supreme Court that is acting outside of their appointed authority and attempting (p00rly) to legislate from the bench in their pursuit of a prior power provided by the legislature (the power to set the meaning of the term ‘invention’ through the use of the judicial power of common law evolution). That power was stri pp ed away in the Act of 1952 in reaction to the anti-patent Court of the 1930s and 1940s. The Court became addicted to that “nose of wax” shaping power, and cannot seem to help itself from sticking its fingers into that nose.

              I “get” that you see a way “out of this mess” with your epistemology stuff.

              I really do.

              But that still does not mean that you rely TOO much on the t001 that you know only too well.

              It is not that you need to abandon that tool.
              It is only that you need to recognize the ballpark that you are in, and NOT try to switch the ballpark from a legal one to a philosophical one.

              Here’s a helpful tidbit: as with any other case of law and exceptions, focus first on the law PRIOR TO trying to make the exceptions into the main rule.

              MANY (including Ned, and to a degree even David) seem to be not recognizing that what is going on is that the Court itself is attempting to wrest the law away from its proper moorings by focusing on the exceptions and NOT looking at what Congress did in the Act of 1952.

              I think that you have come a long way from your initial stomping ground of philosophy (and your dedication to patent law as witnessed by your recent passing of the patent bar to become a patent agent is highly admirable) – but you still have to watch for your tendencies of the “everything is a nail” because of your familiarity with philosophy.

    5. When entirely conventional means are used to process information, how should the patent system respond if the information itself is new and useful?

      This question is currently entirely answered in the exceptions to the judicial doctrine of printed matter.

    1. Thanks Paul – a short, sweet and clear look at how a different sovereign has chosen to address things.

    2. Except the scope of claims in patents are different in Europe than in the United States. In Europe, you get what you invent, and nothing more. In the United States, we have “claimed” inventions which theoretically can be broader than what the inventor.

      Why is this important? Because the patented invention in Europe will only cover the small technological improvement, while in this country a patent could monopolize the entire natural principle.

  8. A law of nature cannot be wrong. However, man’s estimate of that law may be inaccurate.

    This issue actually arose in the Neilson case, which, with Bolton & Watt v. Bull, formed the basis of what we now know to be the law of nature or principle an abstract exception to patentable subject matter. The inventor’s understanding of the heat necessary to bring about the effect in the blast furnace was inaccurate since that the means he specified in this patent specification (a heated box) would not actually work. The original court held the patent invalid even over a jury verdict that there is no intent to deceive. Eventually the Appeals Court upheld the patent because of the jury verdict, but also with the view that the inventor had discovered a principal, a law of nature, of significant value to England and deserved to be protected.

    Just let us say, that when one discovers a new law of nature of significant value, one is entitled to a broad range of means and methods for carrying into effect that principal. However, the claim has to claim that means or method that is actually disclosed (and which is effective), and cannot simply claim the principal itself. If what is disclosed is ineffective, then the specification is non-enabling.

    1. “If what is disclosed is ineffective, then the specification is non-enabling.”

      True, the spec might not be enabling, but the claimed invention might have gotten enabled by something else in the prior art, or might be easily derived/thunk up without undue experimentation. Thus the claims may well survive an enablement challenge.

      As long as they guy in your old timey case actually claimed to the means/method I think that should be fine.

  9. Everything is a law of nature. That’s how science works – mix A and B under the same conditions, and you’ll always get C no matter where you are. If you don’t, then the conditions aren’t the same.

    And yeah, if you want to encourage people to investigate previously unrecognized scientific phenomena, to the point where we have new medicines and treatments and diagnostics, you’re gonna have to provide exclusivity regarding the stuff that people learn.

    The problem is 9 nine Yale- and Harvard-trained humanities majors who don’t know jack squat about science, but think they’re the cat’s meow because they’re not accountable to anyone.

    Regarding Dennis’ hypothetical, if the scientific assumption underlying the claims turns out to be wrong, then that would be basis for invalidating the patent. But why would things get that far? If it was wrong, doctors would stop using the test, and the tort lawyers would be all over it, and no one would infringe because the test doesn’t work.

    1. AM: if you want to encourage people to investigate previously unrecognized scientific phenomena … you’re gonna have to provide exclusivity regarding the stuff that people learn.

      No shortage of kool-aid here.

      I almost didn’t get out of bed this morning. But then I remembered: we still have patents! And just like that I was able to muster the willpower. Thank god for patents! The sun will shine somwhere today but only because the USPTO is still a thing.

    2. Atari Man, according to quantum physics, you will not always get C. However, in the world of biology, the probability that you won’t get C is negligible.

    3. Atari Man,

      I agree with all of your points and would add that Dennis’ hypothetical begs a follow-up hypothetical: What if judicially created law, such as the judicially created abstract idea and natural law exceptions to 35 USC 101 are based on an understanding of science and technology by the justices that is factually wrong? Should future courts overturn such a judicially created law based on the the scientific and technical ignorance of the justices that created the law?

  10. If it is being put forth in the manner in which it would be considered to be a lawl of nature in an application for patent then it is excluded, regardless of whether or not it is mistaken.

    The ATTEMPT to patent any of the excluded subject matter is what there is a prohibition upon. This includes situations where the person screwed up.

  11. If you want people to understand Mayo v. Prometheus and what it was about, Dennis, this is probably the absolute worst place to start.

    Maybe try starting with Prometheus’ theory of infringement instead. You know, the part where they stated under oath that their claim would be infringed by looking at data obtained by an old method, thinking about the correlation, and doing nothing else. Reemember also that Mayo’s doctors were thinking about other numbers and administering altered doses or not. Sometimes those other numbers fell within the claimed ranges (of course they did because the ranges are enormous).

    At the end of the day, it doesn’t matter if what’s being thought about after (or before) the old data gathering step is a “correlation”, an absolute law of nature, or a flying unicorn with purple flippers and three tails. The issue doesn’t change. You can’t protect “new meanings” of old data with a patent claims, and reciting the old data-gathering steps doesn’t help because that’s just a prior art context (one of a zillion different prior art contexts).

    Try educating your readers about Mayo v. Prometheus instead of perpetuating confusion unnecessarily.

    1. instead of perpetuating confusion unnecessarily.

    2. MM —

      Your observation is relevant to “scope of enablement” or “utility,” and at least tangentially relevant to “abstract idea” eligibility, but entirely irrelevant to law of nature subject matter eligibility.

  12. In Mayo, the Supreme Court held the following to be a law of nature

    Fixed to include the quotation marks. For legal purposes, a “law of nature” includes natural phenomena and correlations. I also think you’ve also mistated the correlation, at least with respect to the second half.

    I am betting that this supposed “law” turns out to be incorrect as well.

    It’s certainly subject to nibbling at the margins of the recited numbers which is just one of the reasons that statistical correlation claims like these don’t belong anywhere near the patent system. But there’s no question that it’s correct for most of the bounds that are covered, e.g., if your blood-level of 6-TG exceeds exceed about 40,000 pmol per 8×108 red blood cells then you should be cutting back on the thiopurine dose.

    1. Under your understanding of a law of nature, MM, every invention is a law of nature.

      1. Under your understanding of a law of nature, MM, every invention is a law of nature.

        First of all, the odds that you understand “my understanding” of anything related to patent law are close zero. Second of all, please do the following for everyone: (1) state my understanding of a law of nature; and (2) present as specific of an example as possible of a new non-obvious composition of matter claimed in objectives structural terms which distinguish the composition from the prior art on that basis (i.e., a structural bassis); and (3) present a coherent logical argument that the composition is a “law of nature” based on (1).

        Go for it. Should be easy. If you can’t do it, the kindly S T F U and crawl into your h0 le and die.

        1. L O L – translation: “you don’t understand my p1ssp00r ‘arguments’ so do all the work that I should be doing and then we’ll talk.”

        2. I don’t take assignments MM. But, too funny, you don’t think that the structural difference between two compounds expresses a natural law? Please follow your steps and tell us why not.

          1. you don’t think that the structural difference between two compounds expresses a natural law?

            The question doesn’t even make sense.

        3. And, MM, after 13 years of having me make you look foolish time and time again, do you really think a superior attitude is warranted?

  13. Dennis –

    Don’t we want to encourage the discovery and refinement of laws of nature? Aren’t discoveries patentable subject matter under the statute? Is there anything to discover besides laws and products of nature? Isn’t the Judge made law in this area ridiculous?

    Shouldn’t the guy that discovers that controlling (or naturally having) the level of X in ones blood to be below concentration ZZ prevents all cancers be able to patent a method of preventing cancer that involves measuring X and taking corrective action if the level is ZZ or above …. even if that corrective action is drink more water? Don’t we want that information made public? Or do we want him just to open a Cancer prevention spa where he does blood tests and distributes customized preventive elixirs to Hollywood elites and the like?

    So, laws of nature should be patentable whether they are correct or not.

    1. Les – My take on the word “discovery” is that it hearkens back to the “age of discovery” where European explorers were discovering new lands.

      In the old John Marshall decision of Johnson v. M’Intosh, 21 U.S. 543 (1823), the Supreme Court ruled that the native Indians could not be seen as “discovering” or owning the land because they had not sufficiently transformed the land from its state of nature. Under this construction, discovery is more than simply eyeing something in nature but rather requires “something more.” Note here that the decision has many detractors.

      1. I don’t remember this case as being relevant to patents as I remember it not as a discovery case, but a case of ownership of the land. That it was like adverse possession. The holding was that the Native Americans did not tend the land or shape it. (which the dissent did not agree with.)

        1. In American jurisprudence there are strong analogies among land patents, IP patents, and mining or mineral patents.

      2. Yet another absurd, outcome based Judaical pronouncement. Does it not follow then that If I by some land and leave it alone because my intention is to make a nature conservancy that at some point I no longer own it?
        OMG

        Does the same reasoning apply to patents? If I patent invention X, but never make, use, sell or import the invention, at some point within its term I no longer own the patent?

        Outrageous.

        1. If I patent invention X, but never make, use, sell or import the invention, at some point within its term I no longer own the patent?

          Actually, in the US – the very opposite was held in the 1908 Supreme Court case (reflecting the fact – as opposed to writing new law – that US never had a “must make” provision within our patent laws).

      3. Certainly there has to be a distinction between inventions and copyright with regard to Discoveries. The one provides exclusive rights for useful applications. The other protects publications of the Discoveries.

        The issue of protecting discoveries and principles an abstract is not a new issue. The English were wrestling with it from the late 1700s. We followed in their footsteps in the cases of Le Roy v. Tatham and O’Reilly v. Morse. The conclusions of both the English and American courts is that a patent is awarded for the disclosure of a practical method of carrying out or carrying into practice the discovery.

      4. A better example is the ‘discovery of a vein of gold’ in which you could receive a land patent grant in return for making the claim.

        And your laws of nature examples are all bad because we already know them and its too easy to conflate with obviousness. How about the person who discovers how to make artificial gravity? Albeit via the discovery of a law of nature, and in a device that reduces it to practice. WTH, give the person a 20 year grant, that is a heck of a discovery, and beside the government can always use the patent and only pay a ‘forced’ reasonable royalty. Which BTW is probably how people felt before Morris patented a “means for electromagnetic communication” but after the fact not so much. Such is human nature.

      5. Dennis,

        The problem with a “narrow” definition of the term “discovery” is that almost all chemical process patents are at that core applications of “discoveries” in a broader sense of the term. In fact, although most of the focus on the impact of Mayo has been in the field of biotechnology, a strict application of Mayo test could be used to invalidate almost all chemical process claims going back to U.S. Patent No. 1 granted July 31, 1790 to Samuel Hopkins:

        link to commons.wikimedia.org

        Here’s the text:

        link to en.wikisource.org

        Whereas Samuel Hopkins of the City of Philadelphia and State of Pensylvania hath discovered an Improvement, not known or used before, such Discovery, in the making of Pot ash and Pearl ash by a new Apparatus and Proceſs; that is to say, in the making of Pearl ash 1st. by burning the raw Ashes in a Furnace, 2d. by disſolving and boiling them when so burnt in Water, 3rd. by drawing off and settling the Ley, and 4th. by boiling the Ley into Salts which then are the true Pearl ash; and also in the making of Pot ash by fluxing the Pearl ash so made as aforesaid; which Operation of burning the raw Ashes in a Furnace, preparatory to their Diſsolution and boiling in Water, is new, leaves little Residuum; and produces a much greater Quantity of Salt: These are therefore in pursuance of the Act, entituled “An Act to promote the Progreſs of useful Arts”, to grant to the said Samuel Hopkins, his Heirs, Administrators and Aſsigns, for the Term of fourteen Years, the sole and exclusive Right and Liberty of using, and vending to others the said Discovery, of burning the raw Ashes previous to their being diſsolved and boiled in Water, according to the true Intent and Meaning, of the Act aforesaid.

        Virtually every chemical process, every claimed is a series of “conventional steps” such as: mixing, heating, maintaining at a temperature, cooling, separating by various known means such as distillation, physical filters, centrifugation, skimming, etc. The main differences in different claimed chemical processes are based on the discoveries of what materials should mixed, when they are mixed, the particular temperatures the the materials are heated to, cooled to or maintained at, etc.

        An Examiner strictly following the Supreme Court’s decision in Mayo could rationally argue that virtually chemical process claim is merely an application of a “law of nature” using conventional elements already known in the art.

        The Mayo v. Prometheus Decision by the U.S. Supreme Court was a lawless interpretation of 35 USC 101, was based on the scientific ignorance of the Supreme Court Justices and was based on a profound ignorance by the Supreme Court Justices of patent law and the history of process patents it the United States.

        1. A rational person: a strict application of Mayo test could be used to invalidate almost all chemical process claims

          I frankly cannot believe you just said that.

          1. Why not?

            Did you read what else he said? Do you disagree with a particular point?

            Walk down that “logic” path Ned – where does it lead?

          2. Ned,

            Give me a chemical process claim from an issued patent and I’ll show you how to shoot it down using the Mayo test. I dare you to prove me wrong.

            Also, a couple of other types of conventional steps that I left out above: controlling the pressure at which a step takes place and controlling the presence (or absence) of elements or molecules in the environment in which a step takes place.

            Based on Mayo v. Prometheus, the compounds used do not by themselves allow you to escape “law of nature,” because as David Boundy has pointed out, in Prometheus the material used was a synthetic compound. So even a new compound which is treated with conventional steps fails to confer patent eligibility under the Mayo vs. Prometheus test. Different parameters for the steps also fails to confer patent eligibility, because those parameters are “natural laws” such as “boiling point”, “melting point”, etc.

            And, as I’ve discussed when you ignore the materials and parameters, almost all chemical process of a combination of a relatively number of types of conventional steps.

            1. Should read:

              And, as I’ve discussed when you ignore the materials and parameters, almost all chemical process are a combination of a relatively number of types of conventional steps.

              1. Should really read:

                And, as I’ve discussed when you ignore the materials and parameters, almost all chemical process are a combination of a relatively small number of types of conventional steps.

            2. A rational, I will concede the point that chemical processes generally involve laws of nature. But that does not mean it follows that chemical processes are generally unpatentable subject matter under the Mayo test which has a step 2 which looks to see whether the claim does no more than claim the principal, but whether it is applied for example as in Diehr where an existing process is improved. In other words, if the law of nature is applied in a new process, or to improve an existing process, the Mayo test will say that the claim passes 101.

              You do recognize that the problem with the process in Mayo was that there was no new or improved process – no application of the new discovery of a principal or law of nature to any new process or to any improvement of an old process.

              1. When a new compound is synthesized, usually the compound is the first claim. That compound passes Alice/Mayo Part 1.

                Kant would define that compound at its initial creation to represent new synthetic knowledge. Afterwords the compound represents prior knowledge (a natural phenomenon) and cannot be claimed again.

                Likewise each of the series of reactions in the synthesis is prior knowledge (a natural phenomenon) and would not pass Alice/Mayo Part 1.

                An ordered series not analytically derivable is synthetic knowledge. A claim to that ordered series would pass Alice/Mayo Part 2.

                After the first synthesis the synthetic knowledge becomes posterior synthetic knowledge.

                Now we can do novelty and obviousness analysis.

                If someone else filed an equivalent claim before the instant inventor, the claim would fail novelty.

                If the new compound were part of a family of compounds and if there were a known rule for deriving a synthesis (an ordered series of reactions) to a target compound, we might find some analytic knowledge in either claim.

                Either claim might pass the Alice/Mayo analysis, but they might fail obviousness because of predictability, which is similar but not equivalent to deriving analytically in the simplified Kantian formalism.

              2. for example as in Diehr where an existing process is improved

                For the umpteenth time, Ned, “perfect cures” were known before Diehr.

                1. I WAS an engineer, and very much understand what yield is.

                  HOWEVER – you only cure a one single piece of rubber one single time. You do not cure it multiple times. The claim at point here -and the point that you are trying to make – do not align one to one.

                  If you want to have a claim for batch processing, wherein FOR A BATCH, the improvement of yield OF THE BATCH is an element of a claim – THAT is an entirely different thing than what you are arguing here.

                  But when you are arguing INSTEAD that a process – applied once – is or is not falling under the legal argument that you are debating – WELL, not only is engineering knowledge apparently required – but legal knowledge as well.

                  And yes, I have both. You, on the other hand appear to have just enough to confuse yourself on BOTH ends.

                2. I am not sure the issue is perfect cures although the statistics compared with previous found results might show evidence of novelty or nonobviousness.

                  For the purposes Alice/Mayo Test part 1, each of the sequence of method steps represents Kantian posterior knowledge or Kantian prior knowledge (the Arrhenius equation as a natural phenomenon, which was derived analytically from experimentation — note that both analytic and synthetic knowledge can be prior if the knowledge represents a natural law or a natural phenomenon).

                  The claim as whole (the ordered sequence of steps) or the knowledge combination to which the claim is directed represents synthetic knowledge for molding rubber.

                  The prior knowledge, which is included in one of steps, is completely intrinsic to this method of molding rubber. The claim is not directed solely to the prior knowledge.

                  Because the claim as a whole is directed to synthetic knowledge of a method for molding rubber and because a method for molding rubber is 101-eligible, we don’t need to proceed to Alice/Mayo part 2 but can proceed to novelty and obviousness analysis.

              3. Ned,

                I sadly agree with Gene Quinn that Mayo overruled Diehr:

                “Therefore, one of the clear holdings coming from Diehr is that it is inappropriate to dissect claims into old and new elements. That, however, is exactly what Mayo v. Prometheus commands. Indeed, in Mayo v. Prometheus the Supreme Court found that the claims at issue were not directed to laws of nature because there were well-understood, routine, conventional activity added to the natural laws being claimed and, therefore, the claims were patent ineligible. In other words, the Supreme Court did in Mayo what their own precedent forbade, which was to dissect the claims into old and new elements when making a patent eligibility decision under 101.

                That Mayo overruled previous Supreme Court decisions cannot be seriously debated; it did. Novelty and obviousness are considered under a 101 patent eligibility analysis as directed by Mayo, but oddly without the application of any prior art or the benefit of a claim interpretation. This means that thanks to Mayo, the Supreme Court ignored the statute and their precedent warning against turning patentability into a one-question inquiry. Unfortunately, for many inventions, indeed the most commercially valuable inventions in today’s economy, we now have a one-part test for patentability.”

                link to ipwatchdog.com

                As, Gene Quinn correctly indicates, under Mayo, contrary to Diehr, it is now proper to dissect claims into old and new elements.

                link to ipwatchdog.com

                With the possible exception of the case where a chemical process involves using a separably patentable machine, in which case what is making the claim patent eligible is the use of a patentable machine, virtually all chemical process claims are a combination of conventional process steps, thereby making the process into a new process by the logic of Mayo, with the “new part” of the process involving one or more new compounds, which Mayo indicates does not confer patent eligibility. Because in a chemical process claim, the process virtually always is a combination of conventional steps, outside of the compounds involved which are irrelevant to patent eligibility under Mayo and the parameters which are merely the application of natural laws under Mayo, and therefore, by the Mayo decision, considered an old process. So applying a natural law by such an “old” process, by a strict reading of the Mayo decision does not produce a “new” process, or a “patent eligible process.”

                Once again, provide me with a chemical process claim from an issued patent and I will show you how it can be shot down based on a strict interpretation of Mayo.

                1. A rational, regarding dissection and Diehr, the ultimate search is for a new or improved “manufacture,” which includes, under Diehr, a traditional process that passes the MOT. That existing molding process in Diehr was improved by the claimed invention.

                  Now, when a claim as in Diehr, includes completely unpatentable subject matter like a mathematical algorithm, the question really is whether the mathematical algorithm is being applied to approve the process or not? The dissent in Diehr would have held the claim unpatentable simply because mathematical algorithm’s are themselves not patentable subject matter. I believe there is no question when you look at the dissent and how it was viewing the unpatentable subject matter in the claim in isolation, that the Supreme Court has not really departed from Diehr. One cannot simply look at the unpatentable subject matter completely out of context. The question is whether it is being applied to the existing machine or process to improve it.

                  Thus, if the use of the unpatentable subject matter in the claim produces a new or improved manufacture – and that includes machines and processes, then the claim passes 101. This is typically an analysis done under step two of Alice.

                2. which includes, under Diehr, a traditional process that passes the MOT.

                  Under Bilski, one of maybe two 9-0 holdings there Ned was that your “view” of MoT is simply NOT correct.

              4. Ned,

                I agree with Gene Quinn that Mayo effectively overruled Diehr:

                link to ipwatchdog.com

                “The real mischief of Mayo v. Prometheus is found in the fact that the Supreme Court intentionally choose not to apply 35 U.S.C. 102 (novelty), 35 U.S.C. 103 (obviousness) and 35 U.S.C. 112 (description) to evaluate the claims. The Solicitor General of the United States specifically argued that the Supreme Court should look to those other sections of the statute as the Court itself commanded be done in Diamond v. Diehr, for example.
                Despite the fact that the Supreme Court refuses to recognize it, the decision in Mayo overruled Diehr. In Diehr then Justice Rehnquist wrote for the Court:
                In determining the eligibility of respondents’ claimed process for patent protection under § 101, their claims must be considered as a whole. It is inappropriate to dissect the claims into old and new elements and then to ignore the presence of the old elements in the analysis. This is particularly true in a process claim, because a new combination of steps in a process may be patentable even though all the constituents of the combination were well known and in common use before the combination was made. The “novelty” of any element or steps in a process, or even of the process itself, is of no relevance in determining whether the subject matter of a claim falls within the § 101 categories of possibly patentable subject matter.
                It has been urged that novelty is an appropriate consideration under § 101. Presumably, this argument results from the language in § 101 referring to any “new and useful” process, machine, etc. Section 101, however, is a general statement of the type of subject matter that is eligible for patent protection “subject to the conditions and requirements of this title.” Specific conditions for patentability follow, and § 102 covers in detail the conditions relating to novelty.
                Therefore, one of the clear holdings coming from Diehr is that it is inappropriate to dissect claims into old and new elements. That, however, is exactly what Mayo v. Prometheus commands. Indeed, in Mayo v. Prometheus the Supreme Court found that the claims at issue were not directed to laws of nature because there were well-understood, routine, conventional activity added to the natural laws being claimed and, therefore, the claims were patent ineligible. In other words, the Supreme Court did in Mayo what their own precedent forbade, which was to dissect the claims into old and new elements when making a patent eligibility decision under 101.
                That Mayo overruled previous Supreme Court decisions cannot be seriously debated; it did. Novelty and obviousness are considered under a 101 patent eligibility analysis as directed by Mayo, but oddly without the application of any prior art or the benefit of a claim interpretation. This means that thanks to Mayo, the Supreme Court ignored the statute and their precedent warning against turning patentability into a one-question inquiry. Unfortunately, for many inventions, indeed the most commercially valuable inventions in today’s economy, we now have a one-part test for patentability.”

                Under a strict interpretation of Mayo, you can separate out the “conventional steps” from the “compounds” and the “parameters” in a claim. The series of “conventional steps” can then be deemed an “old process”. The compounds involved can be ignored from a patent eligibility standpoint, because the Mayo Court held that naturals laws could be involved with even a synthetic compound, i.e., 6-thioguanine. All the parameters are merely the direct application of natural laws. So, all the parameters do is apply natural laws to an old process. Whether the application of the natural laws to the old process results in an “improved process” is a pure judgment call based on no facts according to the decision in Mayo v. Prometheus, because there was no factual determination in Mayo v Prometheus as to whether the method at issue was or was not an “improvement” over existing method of treating an immune-mediated gastrointestinal disorder

              5. Of course there was a new processes. It was a new process for diagnosing something, wasn’t it?

                1. Les, Mayo provided only a means for understanding the results of an existing test that was not changed in any manner whatsoever.

                2. This is one of the rare instances, in which I disagree with Ned.

                  The Mayo method was definitely novel and non-obvious, but not patent-eligible according to SCOTUS.

                  In Mayo SCOTUS surreptitiously introduced something radically new — the parameterization of a method. It is a procedure of formal logic. I am not sure how far SCOTUS will go with parameterization.

                  From 12.4.1.1.1.

                  A claim to a method whose steps encompass no more than

                  1. detecting a natural phenomenon (X) by known means (Y),
                  2. inferring the patient state (Z) on the basis of results and standard knowledge, and
                  3. applying a known standard treatment (T) that is appropriate according to the known standard knowledge of the patient state (Z)

                  may have defined the metes and bounds of a new invention when the centaur Chiron taught medicine to Asklepios and Greek doctors stopped doing witch doctor dances, but today substituting for X, Y, Z, and T is completely mechanical (derivable analytically or from the principles of medicine).

                  It took a long time for mathematicians to become accustomed to formal parameterization or logical variables. SCOTUS has responded to the need rather quickly.

          3. Mayo v. Prometheus, 132 S. Ct. 1289 (2012) and Parker v. Flook, 437 U. S. 584 (1978) deal with “detect and do something” claims.

            Alice/Mayo Test Part 1

            In the former a biological natural phenomenon (prior knowledge) is detected in order to infer a medical state. In the latter the status of an apparatus is used for analytical calculations to enter new alarms.

            Flook attempted to define metes and bounds that encompassed posterior and analytic knowledge, i.e., posterior knowledge of the apparatus, which is prior art, and a mathematical formula

            1) that is derived analytically from the posterior knowledge of the apparatus and

            2) that the Supreme Court would (meaninglessly) call an Abstract Idea.

            Alice/Mayo Test Part 2

            Both claims encompass no new synthetic knowledge whatsoever.

            Thus there is nothing more that would make the claims patent eligible under Alice/Mayo Test Part 2.

            Another Detect and Infer Case, Whose Claims in Question Are Not Allowable

            The decision in Ariosa Diagnostics, Inc. v. Sequenom, Inc., 788 F.3d 1371 (Fed. Cir. 2015) follows directly from Mayo v. Prometheus as the CAFC decision states. The metes and bounds of the complaint encompass obtaining cell-free fetal DNA (cffDNA), which is prior knowledge (a natural phenomenon) and applying standard and conventional techniques (previously known posterior knowledge) in order to detect paternal DNA (also prior knowledge and a natural phenomenon). No new synthetic knowledge is encompassed in any way by the claims, and the CAFC upheld the decision of invalidity found by the district court. This decision is worth reading for the discussion of the principle of preemption.

            Detect and Inferred Claims That Are Allowable

            A “detect and do something” claim need not be invalid. Because the metes and bounds of Sir Alec Jeffreys’ genetic fingerprinting method claims in US 5175082 and in US 5413908 encompass transforming ordinary genetic information (prior knowledge or a natural phenomenon — Alice/Mayo Test Part 1) gathered by standard detection techniques into a conceptual structure (Alice/Mayo Test Part 2) that has new meaning as a genetic fingerprint, said metes and bounds encompassing new unexpected synthetic knowledge.

            The two claims describe the transformation as follows:

            (1) “characterizing a test sample of genomic DNA from a donor by reference to one or more controls,” and

            (2) “characterizing a test sample of genomic DNA by reference to a genetic variation by probing said DNA with a polynucleotide probe.”

            1. I should qualify that Locke used the term “Abstract Idea” albeit differently and more precisely that SCOTUS. Early Jurists were probably familiar with Locke. Modern Jurists sans degree in philosophy probably are not.

              In my list of important early modern epistemologists, I should have included George Berkeley, who made a trenchant critique of Locke’s use of “Abstract Idea.”

              Here is The Principles of Human Knowledge by Bishop Berkeley. One has to have read An Essay Concerning Human Understanding by John Locke to follow the argument correctly.

              link to earlymoderntexts.com

              In An Essay Concerning Human Understanding Locke disagreed strongly with Descartes’s Doctrine of “Innate Ideas.”

              Thus to understand the dispute over “Abstract Idea” among these early modern thinkers, one may also need to read Descartes’s Meditationes de prima philosophia.

              Kant comes later and probably provides the most useful theory of knowledge from the standpoint of arguing facts in court.

              1. Joachim, why we go down the path of understanding with philosophers meant by discussing abstract ideas when the real point is to understand why there was an issue with the claims in both Bolton & Watt v. Bull, and in the Neilson case that together form the basis of our modern law.

                1. I do this type of analysis because SCOTUS has introduced “Abstract Idea” without defining it and because we are supposed to look for something more that renders a claim eligible by Alice/Mayo Part 2 if the claim does not pass Alice/Mayo Part 1.

                  We should be able to present evidence with respect to eligibility in an eligibility hearing like a Markman hearing or as part of a Markman hearing. Then we could argue that evidence in an accompanying memorandum or in an expert report (my experience).

          4. Yeah. That is what a number of us have been saying for quite a long time. Whats the big surprise Ned?

    2. Well said.

      What we want to promote is structure. Note that a lot of the problems we have with judges is they don’t understand modern science. There should be an extraordinary reason for holding that some structure of a claim is not eligible for patentability.

      What we have now is justices and judges that say things in their judgments that sound like they are right out of medieval Europe.

    3. You want a reward for discovery of the law of nature? Get a Nobel Prize, not a patent.

  14. “Although still used today, we recognize that they are only a rough approximation.”

    Since the focus of patents is utility, the fact that a rough approximation is useful still means it is a “law of nature” for whatever art it is useful.

    Newtonian physics is still useful if you want to build a bridge. In that context it is a law of nature. That it is not useful in, say, nuclear engineering, should not change anything.

    1. Bored,

      I think that you missed the nuance. Whether or not a utility inures is a bit separate from the distinction of whether or not something is man-derived or is – in actuality – something “of nature.”

      It’s a bit of a nuanced position, and one easily missed.

      1. Bored Lawyer didn’t miss any “nuance.” You did.

        1. He missed the nuance as I listed.

          Your “feelings” – as empty and misplaced as they may be – are noted.

      2. No, I understand the distinction. Whether something is a “law of nature” is a separate inquiry from whether it has utility.

        But the issue raised in this post, as I understand it, is whether the fact that we later discover that a “law of nature” is wrong (or, more, precisely, only a rough approximation) changes the Section 101 analysis. To that, I think it makes no difference, because the overall purpose of utility patents is, utility.

        Would Newton have been entitled to a patent on his Laws of Physics had he discovered them today? The answer is clearly no.

        Is that conclusion undermined by the fact that Einsteinian physics has shown Newton’s physics to be only “rough approximations?” The answer is still, no.

        (Of course, if a “law of nature” turns out to be completely wrong — like that the earth is flat — then it is not patentable for a more basic reason. It simply a sham, like a perpetual motion machine.)

        1. Thanks BL,

          But I think that you still miss the distinction.

          Or perhaps to be more precise, the underlying reason why there is a distinction in the first place.

          “Laws of Nature” are held (by the Court) as an exception because they – the Court – have determined that the “hand of man” is absent from such “laws.”

          The point here though is that the “hand of man” is in fact NOT absent at all.

          These “approximations” are NOT nature at all. And whether or not they “become” false (or at least, become modified) is really not the driver. The driver is that these “things” are nothing more than tools “built by the hand of man” in order to “do” something.

          Yes, these particular “tools” are intended to be reflective of what nature “IS.”

          But the map is not the land.

          Or, to play a little (in homage to René Magritte and The Treachery of Images): this is not a pipe.

  15. “The question I´m pondering over the next couple of weeks is how the law of patents should treat these incorrect or unproven laws of nature.”

    A few thoughts…

    Man has always been fallible, has never been omniscient. This is the real context behind both science and patent law as they have always been.

    Of what relevance does man’s possession of a faulty law of nature (explicitly or not explicitly disclosed or referred to in the spec) have on a claim?

    utility: the claim either includes within its scope something which works or not when properly construed. If the truth about nature is such that the claim is directed to something impossible, does not work, and hence is not useful, then that is fact of the relationship between the claim and the utility of its referents in reality, and has nothing to do with our misunderstanding of nature. Our mistakes in knowledge are not privy to the relationship. Of course, our mistaken beliefs about reality can lead to an erroneous claim such that it in fact lacks utility, after all the process of inventing uses knowledge.

    More likely though, any mistake in Man’s knowledge will not translate into the claim since most claims are directed to things (which have been shaped by man) which do work… even if the patentee did not fully understand why it worked. Mixing chemical A and B creates an explosive, shaping a fan blade like *this* makes more wind or less noise… but the inventor may not know why the useful result follows from what he discovered only that it does follow from what he discovered…proving why something works the way it does using a supercomputer simulation or an army of physicists and mathematicians is not the work of the inventor… it is the work of academics, the inventor just needs to have done and known enough to know that it DOES work.

    novelty: Does faulty knowledge or false understanding, insofar as it is in some piece or prior art, still qualify as prior art? I think so. Certainly if the claim is erroneously mimicking errors in the prior art, there is no reason to say it somehow escapes the novelty requirement… after all a mistake of knowledge in a claim which is old simply is both not new AND erroneous. Novelty is all about the relationship between what is in the claim with what is in some piece of prior art… our mistakes in knowledge are not privy to this comparison.

    obviousness: this is a bit more interesting because here the person of skill standard imports something of the nature of his knowledge. If it is shown that the knowledge of skilled persons in the art WAS flawed at the time of the invention (this includes anyone and everyone including the applicant) what could properly be said?
    There are a bunch of issues which I find interesting:

    some erroneous conclusions are “obvious” in view of the erroneous knowledge, but those erroneous conclusions are nonetheless necessarily false.

    some correct conclusions are patently unobvious in face of the erroneous knowledge because they contradict with the false prevalent holdings of the day.

    Although claims do not include principles correct or incorrect, arriving at a claimed invention involves the application of principles. I think, finding that phosita were mistaken at some time in the past regarding some knowledge could open up the possibility that:

    claims which go against that mistaken knowledge, somehow contradict it, would be unobvious.

    claims to which phosita would be led by the mistaken knowledge could be obvious.

    This last is problematic, as it allows for an invention which may have been actually arrived at by unobvious application of correct knowledge (the inventor as a matter of fact avoiding the mistaken knowledge) nonetheless arriving at an invention which others would claim is obvious according to their mistaken principles and the false path they could take there.

    If an inventor actually discovered something on the principles that “witches sink” this might have been “obvious” in the fictional middle ages of Monty Python…

    I think the implication for obviousness is that it needs to lean in the direction that to be obvious, something needs to be objectively truly obvious … rather than simply subjectively and erroneously obvious…

    1. It’s not clear in the above, there should be a distinction between want phosita “knows” and “thinks”.

      What he “thinks” is any grab bag of correct and incorrect notions, some objective some subjective, some true some false.

      What he “knows” should be restricted to that which is true of reality (insofar as we now know) which he correctly identified (at the time).

      1. Absolutely loved your first post anon2. I disagree with your second.

        Obviousness only makes sense to me as something judged based upon our determination of the ordinary artisan’s actual beliefs at the time if invention. As a practical matter, we cannot get into the business of deciding truth, because we will often get it wrong. Moreover, if something would have been obvious based upon an erroneous understanding of the world that happens to be the actual (mis)understanding of one of ordinary skill at the time of the invention, then it actually was obvious at the time. If we stop caring about what one of ordinary skill would have actually thought, then what are we even doing in this analysis?

        1. Thank you for the kind words. You raise a good point. The question I am grappling with, however, is not as superficial as it may appear.

          Suppose a phosita would have been (hypothetically and allegedly as determined by some adjudicator) led directly and without difficultly to the claimed invention based on knowledge of the prior art combined with the false knowledge and (which might be in some of the prior art), and furthermore suppose the following are the case:

          1. no one in fact WAS led to the invention at the time (and for some time after)
          2. the patentee DID NOT rely on the false knowledge (evidence gleaned from the spec regarding the genesis of the invention does not show the false knowledge played a causative role)
          AND
          3. the invention WOULD not have been obvious to a phosita missing the false knowledge (this is not a requirement for omniscience, i.e. the possession of all or perfect knowledge which is impossible but merely for the absence of the false knowledge)

          Then it is hard for me to square fundamental principles of intellectual property rights, what they are, why they are just, with the prospect of stripping away the rights to the invention from the patentee. This seems patently non-objective and overly subjective. A person created value and has property rights in that value.

          The rule of Law somehow becomes not just the rule of men, but in a very specific way, ruled by the errors of men. You rights are not determined by what you did and what other men did not do, but by the false knowledge other men failed to industriously employ.

          Example:

          Assume I discovered stomping on crop grounds would kill grubs to help crops grow in the crop field, assume the town mayor had been routinely stomping in the center of town as an effort to make it rain (this is not for the purpose of alluding to any specific culture, serving simply as an example of false knowledge), moreover, assume everyone in the village believed that it were true that stomping anywhere in or near the village would increase (by 20%) the next spring rains within 100 miles, but I always thought is an erroneous belief, assume I have a granted patent claim to stomping on the crop ground to improve crop yield, now that would be novel… assume no one figures out the same thing about grubs, assume moreover that after 10 years of having my patent people have finally give up the practice of stomping to make rain, they realize it is based on false knowledge, by coincidence (or not) someone else starts stomping in the crop fields to kill grubs.. I take the infringer to court…should my patent be invalidated for obviousness?

          This might be clear cut for you, but the injustice of it gives me pause.

          1. 103 states that “Patentability shall not be negated by the manner in which the invention was made.” I think it is logically consistent to say that obviousness should not be negated by the manner by which a phosita would have made the combination. If we are really trying to determine what a phosita would have done when presented by certain knowledge, it is irrelevant whether their motivation is based on a false premise. Anything more nuanced is unworkable, I think (even the current test is misapplied constantly, and you are proposing some twice as meta). While I hear you, there are no natural rights in IP law.

  16. Hi Dennis – some thoughts:
    1. I don’t know that being wrong matters. As much as I don’t like how the exception is implemented, I don’t think it is based on “laws” of nature, but rather “properties” of nature – such that even if you are wrong the claim is invalid so long as it is claiming some natural phenomenon. So, the threshold at which to change dosage is irrelevant – all that is relevant is that you are claiming a dosage based on some threshold that occurs naturally
    2. If you go the other way and say that the law is wrongly defined, then the claim should be invalid for lack of utility – see my discussion in Reinventing Usefulness and A Surprisingly Useful Requirement

    1. Michael,

      Your (1) above destroys all pharma patents.

      Prof. Crouch, I am curious as to what prompts this type of thinking at this time (recognizing that myself and others have posted on this in the past, especially during and after Mayo).

      1. Hi anon –

        First, I don’t think it does. Pharma patents are compositions of matter, not methods relying on natural phenomenon

        Second, yes, it might well destroy all pharma use, dosage, and treatment patents

        Third, note the first part of my comment: “As much as I don’t like how the exception is implemented” I think Mayo and how it is implemented is awful, and I’ve written articles and been cited in Supreme Court briefing to that effect. I didn’t make this rule. But note that whether pharma use and treatment patents are killed or not won’t be based on whether the science is right – which was the question.

        1. The compositions of matter fail due to the reasons why any such compositions have utility.

          Your position proves too much.

          (And let’s not forget how the Court likes to “abstract up a level” and use the “directed to” mechanism to apply its legislating from the bench – )

          1. The compositions of matter fail due to the reasons why any such compositions have utility.

            LOL

            What?

    2. If “the law is wrongly defined, then the claim should be invalid for lack of utility.” Also, FDA approvals denied or later removed and thus not infringed.

      P.S. of course “Natural Law” [an old legal philosophic concept originating from religion] has a completely different meaning from the Sup. Ct. prohibition of patenting “laws of nature” or more accurately physical elements and biological reactions that naturally occur.

      1. I agree with you that the SCOTUS’s definition has very little to do with what science or philosophers think of as a law of nature.

        But, the real question is then what is the basis for the SCOTUS’s jurisprudence? Where does their authority come from to shape 101?

        1. Not only “where” but – perhaps a more pertinent question to a forum that prides itself as “America’s leading patent law source,” why is it that any such authority NOT routinely challenged as to its propriety?

          As we have seen with the exception (the exception that proves the rule), only the Commonwealth of Massachusetts lacks an affirmative duty of making sure that not one (or ANY of the three) branches of the government place themselves above the Constitution.

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