Today the Supreme Court decided NOT to hear the LabCorp v. Metabolite case after all.
Patent law is confused enough already without the Good Justices weighing in on matters scientific.
A question that's always baffled me is why courts and legislatures are so quick and eager to protect copyright holders, while patents, and the unfortunates who own them, get slapped down right and left.
My admittedly untested and no-doubt biased theory is that most judges and lawyers identify far more with "writers" and "artists" than with lowly engineers, scientists and other techno-nerds who often couldn't get dates in high school (including me, alas). It's only natural, I suppose, that they still see the average book, play, Brittany Spears CD, or whatever, as a greater and more deserving creative achievement than, say, the log-periodic antenna.
The dissent in Metabolite demonstrates again that most judges have absolutely no idea of what technology actually is, how basic science actually figures in, or how technical advancements are actually made. Once again we hear the tired platitudes that Einstein's famous equation and Newton's Law of Gravity cannot be patented. But what do these statements even mean? What, precisely, would it mean to "patent" the Law of Gravity? Would it prohibit people from making selling or using it? (And, if so, how does one go about making, importing, selling or offering for sale a scientific law?) Somebody please explain.
Naturally, of course, it's only when someone makes practical use of an idea, such as Einstein's matter/energy equivalence, that patentable subject matter -- at least as defined by Section 101 -- first comes into existence. Once that occurs, why shouldn't those specific applications and uses be patentable, assuming they are new, useful and unobvious?
Turning to the facts of Metabolite and the muddled thinking of the dissenting justices, we're lucky the Court elected not to bless us with their wisdom in this case. The majority thankfully said simply that the original writ of certiorari was "improvidently granted." The dissent, however, elected to demonstrate why federal judges are rarely recruited as research scientists after leaving the bench.
In Metabolite, the inventors discovered a correlation between elevated levels of total homocysteine (whatever that is) and deficiencies of cobolamin or folate in warm-blooded animals (whatever those are -- the chemicals, not the animals). The subject claim recites a "method for detecting a deficiency of cobalamin or folate in warm-blooded animals" by looking for "an elevated level of total homocysteine." In layman's terms, this is similar to assessing someone's health by checking his temperature -- an ancient technique that is based on the natural phenomenon that there is a correlation between elevated temperature and infection. Unless I'm missing something, the basic concept in the Metabolite case is analogous and based on the newly discovered correlation between homocysteine and cobalamin or folate.
According to the dissent, this correlation is simply a "natural phenomenon." I'll accept that. What I don't accept is their nonsensical conclusion that the claimed, specific method based on this phenomenon is "unpatentable" subject matter because it uses this "natural phenomenon."
Virtually every invention uses -- and indeed relies on -- the laws of nature and other "natural phenomena." If they didn't, their benefits wouldn't be reproducible by others and no need for a patent would exist in the first place. What's the point of patenting something if the results aren't predictable and repeatable?
And check out the other reason the dissent gives for denying a patent: "the reason for exclusion is that sometimes too much patent protection can impede rather than 'promote the Progress of Science and useful Arts.'" Got it? Your crime, Mr. Inventor, is that you invented "too much." Heretofore, most patents were denied because the inventor invented too little. But now patents should also be denied if the inventor invents "too much." Hmmmm. Guess we better add Goldilocks to the engineering staff so she can tell us what's "just right." (And while we're on the subject of fairy tales, the Court apparently thinks there is no such thing as "too much" protection when it comes to a by now geriatric cartoon rodent. But I'll leave it to someone else to figure that one out.)
Judges often have a romantic view that "inventors" (preferably mad ones!) are some sort of creative geniuses -- artists, if you will -- while real world engineers and scientists who do the actual inventing, are just overgrown grease monkeys. You see this in the "flash of creative genius," "inventive fire," "synergy" and other nonsense the Supreme Court has from time-to-time come up with to justify denying a true inventor his proper reward. (Incidentally, this is why as a plaintiff's lawyer you are well-advised to describe your client to the jury as an "inventor" or "entrepreneur" rather than merely an engineer, scientist or other such "boring" type. Jurors tend to share this bias too.)
While I thank the dissent for entertaining reading, I'm glad the full court did not get their hands on this case. I have quite enough to do keeping up with imaginary claim limitations, disappearing precedents and other mundane problems that crop up in modern patent practice without having also to worry about bull-in-the-china-shop inventors who boorishly invent "too much" and pigishly contribute more than they have any right to to human knowledge and our understanding of the natural world.