22 January 2011

Prometheus, Continued

I'll continue my discussion from yesterday without a lot of overlap.

It seems that the Federal Circuit, via its decision in Prometheus Labs, is suggesting that the doctrinal limit on the patenting of "physical phenomena" doesn't actually limit very much.

The above link will take you to Holman's Biotech IP Blog, which has a very extensive discussion of this case. Unfortunately Holman, like many of the blogosphere's commentators on IP matters, is a patent hawk. He believes the stronger is the legal protection for patent hoilders, the better. I, on the other hand, am a dogged patent dove, or maybe a dovish patent dog (allegorical zoos become confusing): so on my anarcho-cap bias alone I would have been happy to see this case go the other way.

It still might, because SCOTUS could yet get it. The Bilski decision indicates they want to do something about this field of law, and they obviously didn't think that decision was a proper vehicle for doing anything bold. Maybe this one will be more to their liking.

As to the "physical phenomena" limit in particular, I'll note that back in 1948 the court said that the characteristics of certain bacteria, "like the heat of the sun, or electricity, or the qualities of metals, are part of the storehouse of knowledge of all men. They are manifestations of the laws of nature, free to all men and reserved exclusively to none." Here's a link to that decision, by William O. Douglas.

Love that oracular Douglasite prose.

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Knowledge is warranted belief -- it is the body of belief that we build up because, while living in this world, we've developed good reasons for believing it. What we know, then, is what works -- and it is, necessarily, what has worked for us, each of us individually, as a first approximation. For my other blog, on the struggles for control in the corporate suites, see www.proxypartisans.blogspot.com.