Where will SCOTUS go next on patents, software, laws of nature, and fear of patent trolls/NPEs? Another step on the journey unfolds today with oral arguments in Alice v. CLS Bank (SCOTUSblog case page). Many amicus briefs were filed, and pundits are out commenting, with varying degrees of patent think. For example, here and here. Personally, I found interesting and thoughtful this essay by Eric Citron.
My instinct is not constrained by patent training or patent thinking, and is that the Court will continue to reject efforts to patent facts about how to do business and facts about nature works, but will allow consideration of new and useful inventions created after uncovering the facts. That outcome seems in the vein suggested by DOJ, ad described by the Citron essay above. In any event, I’m biased in favor of rulings that block patents for finding the rules of nature but reward invention of new answers and creations built from new knowledge. Thus, I’m still applauding the rulings by SCOTUS in Prometheus and the subsequent unanimous ruling in Myriad Genetics that rejected claims for patents on BRACA genes found after a massive effort by many researchers and others working around the world.
As someone else put it, there is no logic to giving a patent to the person who put the last brick in the wall when many investigated and published steps along the way to defining the rules about how nature works. And, predictably, Myriad’s loss at SCOTUS was followed by reduced prices for genetic testing for BRACA genes. The rulings also were followed by the IPO of Foundation Medicine, and its marvelous genetic tests that screen for hundreds of mutations in DNA and RNA in solid tumors and blood cancers. Indeed, Foundation’s tests retail for $7,500 (or less for bulk users), which is only about $2,500 more than the amount Myriad was charging for testing only BRACA genes.