Nicholaus Malone

In recent years it would seem that the question of whether business methods should be patentable has come under significant debate (see judge Mayer’s dissent in Bilski).  Business methods have been patentable in the United States since the first patent law was enacted by the Founding Fathers in 1790, so why is this such a big issue now?  Historically, patents for business methods have generally applied to the methods of producing physical items, so a method of production on a factory floor could be patented and so could a new method of printing. But what does this mean in a world where innovation is becoming less-and-less tied to the physical every day?

While doing some reading into the Supreme Court case of Bilski v Kappos, I came across an interesting piece of analysis by IP lawyer Gene Quinn. Quinn brings up an interesting case involving patent law, somewhat related to Bilski v Kappos where the Supreme Court chose not to issue a ruling.

It seems that some bright scientists at University Patents Inc. discovered a new way of detecting deficiencies in a person’s levels of cobalamin or folate (types of B vitamins). For their hard work and money spent in researching this, they received a patent on their method, which involved correlating low levels of homocysteine with the cobalamin/folate deficiency. That seems only fair to me. They did the research. They get to reap the benefits.

Now along comes Laboratory Corporation of America who wants to sell services revolving around this method. Breach of patent, right? Maybe not.

Even though the Supreme Court elected not to issue an opinion, several justices issued dissenting opinions stating that the patent should be overturned. The reasoning behind their decision is that detecting deficiencies in cobalamin/folate by testing for low levels of homocysteine (and some other voodoo), “merely recited a law of nature”, and is not patentable (this isn’t universally so; read the article).

Ok, well maybe it is a law of nature, so what? These guys did a lot of hard work and probably spent a fair amount of money doing this research. Innovations like this and many software innovations are hard devilishly hard to protect with patents. With advances in biotechnology and information technology continuing to run along at a frenetic pace, issues like this are going to be more and more common. As a potentially innovative person, I’d like to think that if I discover an innovative way of solving a problem, that I can get some legal protection for my invention.

And, now I’m rambling. It’s a good read. Let me know what you think of this issue.