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Posts Tagged ‘Mayo v. Prometheus’

Supreme Court ‘Only Black Magic Patent Eligible’

The Supreme Court ruling in Mayo Collaborative Services v. Prometheus Labs., Inc. (Supreme Court 2012) was released on March 20, 2012 and they held unanimously against Prometheus and invalidated two patents under 35 USC 101.  My title may be a bit salacious, since the holding in the case does not limit patents to just black magic, it limits them to magic.  The holding on p. 4 states:

 The steps in the claimed processes (apart from the natural laws themselves) involve well-understood, routine, conventional activity previously engaged in by researchers in the field. P. 4

And adds:

 The three steps (of the claim) as an ordered combination adds nothing to the laws of nature that is not already present when the steps are considered separately.  P. 10

Logically, the Supreme Court is saying that known steps or elements in combination with a law of nature is not patent eligible.  First every invention ever made involves steps (elements) that were known individually before the invention, and laws of nature.  You cannot create something out of nothing.  Section 112 means that you have to be able to describe your invention in terms known to those skilled in the art.  Thus the Supreme Court’s holding means that any invention that satisfies 112 is unpatentable under 101.  The only inventions that will satisfy 101 are those that violate laws of nature or involve creating something out of nothing – or magic.

Get out your cauldrons-

For the lawyers in the audience this case reintroduces the point of novelty test nonsense.

I have written extensively about this case in the following posts and will not reiterate my earlier points.

Justice Breyer: Patent Ignorance 

Mayo v. Prometheus: An Update

Mayo v. Prometheus – Supreme Court Grants Cert (Again) 


But for those not familiar with the case here is a little background

The patents (6,355,623 and 6,680,302) claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases. Thus, the questions in this case are whether determining optimal dosages of thiopurine drugs to treat autoimmune diseases exists in nature separate from man and whether this solves an objective problem? Clearly, determining optimal dosages does not exist in nature for any drug and the patent solves the objective problem of determining the optimal dosages of thiopurine drugs for autoimmune diseases.

Ayn Rand discussed this exact issue in Atlas Shrugged.  James Taggart is discussing Rearden Metal with his wife:

”…’he didn’t invent smelting and chemistry and air compression.  He couldn’t have invented HIS metal but for thousands and thousands of other people. HIS Metal! Why does he think it’s his? Why does he think it’s his invention?  Everybody uses the work of everybody else. Nobody ever invents anything.’ (Jim Taggart)  She(Jim Taggart’s Wife) said, puzzled, ‘But the iron ore and all those other things were there all the time. Why didn’t anybody else make that Metal, but Mr. Rearden did?’”  Kindle Location 5796-5802

These exact questions could be asked of the Supreme Court.  All these other steps were available to other people, but no one else discovered how to use thiopurine to safely treat Crohn’s disease.  In fact, the Supreme Court admits as much.

 . . . and it has been difficult for doctors to determine whether for a particular patient a given dose is too high, risking harmful side effects, or too low, and so likely ineffective.  p. 4

The reality is that this Supreme Court is anti-patent and anti-property rights.  The opinion states patents are monopolies in three spots and mentions rent seeking in one spot, but it does not mention that the Constitution clearly states that inventors have a RIGHT to their invention and it does not state that patents are property rights.  This case is just another example that the anti-property rights and anti-Natural Rights crowd is in control of our government.  This case will have long term negative ramifications for the US economy.  The US is losing its technological advantage because it believes that inventors should work for free.  Note that Singapore is taking another path and trying to figure out how to strengthen their patent laws (see Singapore and the US Divergent Patent Policies)

A Christmas Tale: ‘I Am My Brother’s Keeper’ – and How it Applied to Patents

The phrase “I am my brother’s keeper” is used to explain a moral goal or imperative.  The word ‘brother’ does not mean your biological brother, but those people in your community, or country, or really every other human being in the world.  The word ‘keeper’ is used to mean that you have a moral responsibility to help every other human being in the world.  This responsibility means that you are to put their needs before your interests and your moral goal is that people exist to serve others.  In other words, the phrase ‘I am my brother’s keeper’ enshrines SLAVERY as a moral goal.  Slavery is the condition in which you have no right to exist for yourself, your only right to exist is to serve others.  Note that all slaves need a master and as a result it is no surprise that President Obama has used this phrase to explain his policies as he is an avowed socialist and wants to be our master.

Wherever this moral goal has been tried it has resulted in human suffering, misery, disease, famine, death, and torture.  North Korea is the country that most encapsulates this moral goal today and it is a living hell.  The Soviet Union and Communist China also tried to implement this moral imperative and it resulted in the largest genocides in the 20th century, resulting in the death of over 100 million people.  Attempting to following this moral code also resulted in the Dark Ages under the direction of the Catholic Church.  It is also why the Christian right is often ineffective at countering socialists arguments, since they accept the same moral goal.  These bad outcomes do not occur because the wrong people are in charge, they occur because slavery is immoral and this is the logical result of following an immoral goal.

The opposite moral imperative to ‘I am my brother’s keeper’ can be found in our Declaration of Independence – namely the RIGHT to Pursue One’s Own Happiness.

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.

This right to pursue your own happiness is the exact opposite of slavery.  It states that no one has the right to enslave you (or anyone) morally or legally.  Wherever this moral ideal has been tried it has always resulted in human happiness, abundance, technological innovation, increasing life spans, increase health care, and yes fewer environmental problems.  There is no contradiction between what is moral and economic abundance and human happiness.  This has not occurred because the right people have been in charge, it is the result of pursuing that which moral, namely FREEDOM.

Why should a blog directed to patents and inventions care about such a subject?  Because this idea of ‘I am my brother’s keeper’ has been raised in the cases Association of Molecular Pathology v. USPTO (which was original called ACLU v. Myriad) and in Mayo v. Prometheus and it is used by opponents of patents.  They all argue that the inventor has no right to his invention and the only reason we allow them to invent is to serve their fellow man.  In the ACLU case this argument was re-crafted as property rights should not stand in the way of science.

Slavery is immoral and a moral goal of slavery, even if it is suppose to be voluntary, is immoral.  Those who push the moral goal of slavery are advocating human misery, death, famine, and genocide.



Justice Breyer: Patent Ignorance

PatentlyO reported the following hypothetical.

In Mayo v. Prometheus, the Supreme Court is again addressing patentable subject matter. During oral arguments, Justice Breyer came-up with a hypothetical invention to help him draw the line on patentable subject matter.

JUSTICE BREYER: Suppose I discover that if … someone takes aspirin … for a headache and, you know, I see an amazing thing: if you look at a person’s little finger, and you notice the color [indicates that] you need a little more, unless it’s a different color, you need a little less. Now, I’ve discovered a law of nature and I may have spent millions on that. And I can’t patent that law of nature, but I say: I didn’t; I said apply it. I said: Look at his little finger.


JUSTICE BREYER: Okay? Is that a good patent or isn’t it?

MR. SHAPIRO: No … Well, because you — you’ve added to a law of nature [to] just a simple observation of the man’s little finger.

First of all taking aspirin is not a law of nature.  The law of nature would be how the body reacts to aspirin, but the process of taking aspirin is not a law of nature.   If you use this information to observe whether someone is taking too much or too little aspirin, then you have applied that “law of nature” to a human problem.  Namely, how to know how much aspiring one should take for a headache.

The Supremes struggled to find a hypothetical to understand 35 USC 101 according to the reports.  Here is a simple 35 USC 101 test that even they should be able to apply correctly.

Anything that man creates to solve an objective problem is an invention.  If a device/service is not found in nature separate from man then it is an invention.  For example, the ability to create fire or harness it is an invention of man.  No other animal has the ability to create or harness fire.  Man did not have some sort of inherent knowledge of how to create or harness fire, so creating fire is an invention.[1]

Applying this information to the above hypothetical, aspirin is created by man.  It does not exist separate from man, so this hypothetical is clearly within 35 USC 101.  Taking aspirin is not a part of nature.  Observing the effects of taking aspirin is not a part of nature.

Mayo’s argument in this case boils down to patents should not exist, or at least should not be apply to Mayo.

[1] However, it is no longer novel and therefore you could not patent for creating fire.


Why Government Funded R&D Cannot Replace the Patent System

It is quite common for academic economists and others to suggest that the incentive of the patent system could be replaced with government funding of Research and Development.  In fact, this argument was made by Mayo in their brief to the Supreme Court in the Mayo v. Prometheus case.  These academic economists often complain that patents lead to rent seeking and are monopolies.  There are two fundamental flaws in their arguments.  One is that patents are a property right and protection of property rights is not only necessary for economic growth (see the Frasier Institute and Heritage/Wall Street Journal survey of economic freedom), but necessary for a just society.  Second, the real rent seeking happens when governments attempt to fund R&D and act as a source of venture capital as two excellent articles showed this week.  Solyndra is only the latest in a long line of failed government investment that prove this point.

Almost every major technological advance made in the US was due mainly to property rights provided by the patent system.  These property rights made it possible to invest in creating and deploying these technologies and without the patent system they would never have made it into the marketplace.  Among these technologies are the telegraph, the telephone, the technology behind drilling for oil, the technology of fracturing oil, the airplane, the copy machine, radio, television, the computer industry, the electronics industry, and yes the internet.  While DARPA can claim that their funding creating the basic building blocks of the internet, it did not create the advances that were necessary to make it a viable commercial product.  The Patent Office is a totally self funded agency, which means it receives no federal tax dollars.  The American people received this benefit without any cost to themselves.  For those who argue that there were social costs to these patents, please look at North Korea or the USSR and see the true costs of a patent system.

What great technologies can government funding claim?  The atomic bomb, sonar, some improvements in radar, and some credit for getting the American System of Manufacturing started.  Government funding is good at creating weapons technology, which is a legitimate role for government.  Two great articles point out the fallacy of government replacing the patent system.  One is Before Solyndra, a long history of failed government energy projects, By Steven Mufson. Mr. Munson documents the abject failure of government investments in the energy field.  These failed investments represent tens of trillions of wasted taxpayer money.  The article points out that:

Not a single one of these much-ballyhooed initiatives is producing or saving a drop or a watt or a whiff of energy, but they have managed to burn through far more taxpayer money than the ill-fated Solyndra. An Energy Department report in 2008 estimated that the federal government had spent $172 billion since 1961 on basic research and the development of advanced energy technologies.

Another great article showing the fallacy of government investment is Solyndra Case Reveals Gateway Between Administration Loans, Obama Allies.  This article points out that “government investment” is always politically connected.  According to the article “This is a payoff to people who are your political backers and supporters. And this is really a wealth transfer from middle class taxpayers to billionaires, Schweizer said.”  Schweizer is author of the book, “Throw Them All Out,”   This is the system that these academic economists suggest can replace the patent system.  This is the system that is suppose to replace the supposed “rent seeking” of patents.


Mayo Clinic’s Invention Theft Strategy

Mayo clinic’s management is pursuing a business strategy of efficient infringement – more commonly known as theft of other people’s inventions.  This immoral course of action is exemplified by Mayo’s involvement in the frivolous patent lawsuit Mayo v. Prometheus and Mayo researcher’s intellectual support for ACLU, Mayo et al. v. Myriad and in their support, through their lobbying organizations, for the America Invents Act (H.R. 1249 & S.23). The Act is nothing but a power grab by large multinational companies to steal the inventions of individuals and startups.  The researchers at Mayo better wake up and realize that their managements’ actions, if successful, will not be limited to stealing the intellectual effort of non-Mayo inventors.

Mayo v. Prometheus – Supreme Court Grants Cert (Again)

On June 20th, the Supreme Court granted cert. for the second time in Mayo Collaborative Services v. Prometheus Labs., Inc, Supreme Court No. 10-1150.  This case is about patents 6,355,623 and 6,680,302 to Prometheus, which claim methods for determining the optimal dosage of thiopurine drugs used to treat gastrointestinal and non-gastrointestinal autoimmune diseases.  Prometheus sued the Mayo Clinic for infringement and Mayo’s defense was that the patents are invalid as not being patent eligible material under 35 USC 101.


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