Friday, September 4, 2015

Nothing is Patentable

I signed onto two amicus briefs last week, both related to the tightening noose of patentable subject matter. Those familiar with my article Everything is Patentable will know that I generally favor looser subject matter restrictions in favor of stronger patentability restrictions. That ship sailed, however; apparently we can't get our "stronger patentability restrictions" ducks in a row, and so we use subject matter as a coarse filter. It may surprise some to hear that I can generally live with that as a policy matter; for the most part, rejected patents have been terrible patents.

But, now that these weaker patents are falling like dominoes, I wonder whether subject matter rhetoric can stop itself. This has always been my concern more than any other: the notion of unpatentable subjects is fine, but actually defining a rule (or even a standard) that can be applied consistently is impossible.

This leads us to the amicus briefs. The first is in Sequenom, where the inventors discovered that a) fetal DNA might be in maternal blood, and b) the way you find it is to amplify paternal fetal DNA in the blood. The problem is that the discovery is "natural" and people already knew how to amplify DNA. As Dennis Crouch notes, this seems like a straightforward application of Mayo - a non-inventive application of the natural phenomenon. Kevin Noonan and Adam Mossoff were counsel of record on the brief.

But here's the thing: it's all in the way you abstract it. Every solution is non-inventive once you know the natural processes behind it. This argument is at the heart of a short essay I am publishing in the Florida L. Rev. Forum called Nothing is Patentable. In that essay, I show that many of our greatest inventions are actually rather simple applications of a natural phenomenon or abstract idea. As such, they would be unpatentable today, even though many of them survived subject matter challenges in their own day.

Returning to Sequenom, there were other ways to parse the natural phenomenon. For example, it is natural that there is fetal DNA in the mother's blood, but finding it by seeking out only the paternal DNA is a non-conventional application of that phenomenon. No one else was doing that. Or, it is natural that there is fetal DNA in the mother, but finding it within the blood is a non-conventional application of that phenomenon. After all, no one had been doing it before, and no one had thought to do it before. Either of these two views is different than the types of application in Mayo v. Prometheus, which simply involved giving a drug and then measuring the level of the drug in the system (something you would expect to find after giving the drug). In Mayo, the court commented on the bitter divide over what to do about diagnostics, and punted for another day. That day has come.

The second amicus brief is in Intellectual Ventures v. Symantec; Jay Kesan filed this brief. In the Symantec case, the district court ruled that unique hashes to identify files were like license plates, and therefore conventional. Further, it noted that the unique ids could be created by pencil and paper, given enough time. It distinguished virus signatures (an example in PTO guidance of something that is patentable) by saying that file ids were not really computer based, while virus signatures were. I mention this case in my Nothing is Patentable essay as well.

I have less to say about this ruling, but I think it is wrong on both counts. First, unique file id hashes are much more like virus signatures than they are like license plates. There is a rich computer science literature area in this field - solving problems by identifying files through codes associated with their content. Of course, computer science folks will say this is not patentable because it's just math. That's a different debate; but it is surely not the same thing as attaching a license plate to a car. Second, this notion that people can do it with a pencil and paper has got to go. As the brief points out, with enough people and enough time, you can simulate a microprocessor. But that can't be how we judge whether a microprocessor can be patented, can it?

These two cases show the pendulum swinging - and hard - toward a very restrictive view of patentability. Taken seriously and aggressively applied, they stand for the proposition that many of the fruits of current R&D are outside the patent system -- even though their historical analogues were patentable. Perhaps I'm being a pessimist; I sure hope so.

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