As I mentioned, elsewhere, the definitions in §100 are how the words in §101
(and other sections of the act) are to be interpreted rather than to use the
generally understood meaning from, say, Webster's Dictionary.
The text
in §100, when considered in this light, says that the word 'invention', when
used in U.S.C. 35, is not limited to 'invented' subject matter, but also
encompasses discoveries. In other words, it says just what you said.
As
you have said in other comments, it is not permissible to ignore the language in
any law. The existing language is quite sufficient to confirm your other
conclusions.
Sorry for the length of the post, but here is Mayo making
those implicit conclusions of the law, explicit judicial exclusions:
Section 101 of the Patent Act defines patentable subject
matter. It
says:
“Whoever invents or discovers any new and useful process, machine,
manufacture, or composition of matter, or any new and useful improvement
thereof, may obtain a patent therefor, subject to the conditions and
requirements of this title.” 35 U. S. C. §101.
The Court has long held
that this provision contains an important implicit exception. “[L]aws of nature,
natural
phenomena, and abstract ideas” are not patentable. Diamond v. Diehr, 450
U. S. 175, 185 (1981); see also Bilski v.
Kappos, 561 U. S. ___, ___ (2010)
(slip op., at 5); Diamond
v. Chakrabarty, 447 U. S. 303, 309 (1980); Le Roy v.
Tatham, 14 How. 156, 175 (1853); O’Reilly v. Morse, 15 How.62, 112–120 (1854);
cf. Neilson v. Harford, Webster’s Patent Cases 295, 371 (1841) (English case
discussing same). Thus, the Court has written that “a new mineral discovered in
the earth or a new plant found in the wild is not patentable subject matter.
Likewise, Einstein could not patent his celebrated law that E=mc2; nor could
Newton have patented the law of gravity. Such discoveries are ‘manifestations of
. . . nature, free to all men and reserved exclusively to none.’ ” Chakrabarty,
supra, at 309 (quoting Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U. S.
127, 130 (1948)).
“Phenomena of nature, though just discovered,
mental
processes, and abstract intellectual concepts are not patentable, as they
are the basic tools of scientific and technological work.” Gottschalk v. Benson,
409 U. S. 63, 67
(1972). And monopolization of those tools through the grant of
a patent might tend to impede innovation more than it would tend to promote
it.
The Court has recognized, however, that too broad an
interpretation of this exclusionary principle could eviscerate patent law. For
all inventions at some level embody,
use, reflect, rest upon, or apply laws of
nature, natural
phenomena, or abstract ideas. Thus, in Diehr the Court
pointed
out that “ ‘a process is not unpatentable simply
because it contains a law of
nature or a mathematical
algorithm.’ ” 450 U. S., at 187 (quoting Parker v.
Flook,
437 U. S. 584, 590 (1978)). It added that “an application
of a law of
nature or mathematical formula to a known
structure or process may well be
deserving of patent protection.” Diehr, supra, at 187. And it emphasized
Justice
Stone’s similar observation in Mackay Radio & Telegraph
Co. v. Radio
Corp. of America, 306 U. S. 86 (1939):
“ ‘While a scientific truth, or the
mathematical expression of it, is not a patentable invention, a novel and useful
structure created with the aid of knowledge of scientific truth may be.’ ” 450
U. S., at 188 (quoting Mackay Radio, supra, at 94).
See also Funk
Brothers, supra, at 130 (“If there is to be
invention from [a discovery of a law
of nature], it must
come from the application of the law of nature to a new
and
useful end”).
Still, as the Court has also made clear, to transform
an
unpatentable law of nature into a patent-eligible application of such a law,
one must do more than simply state the
law of nature while adding the words
“apply it.” See, e.g.,
Benson, supra, at 71–72.
The case before us
lies at the intersection of these basic
principles. It concerns patent claims
covering processes
that help doctors who use thiopurine drugs to treat patients
with autoimmune diseases determine whether a given dosage level is too low or
too high. The claims purport to apply natural laws describing the relationships
between the concentration in the blood of certain thiopurine metabolites and the
likelihood that the drug dosage will be ineffective or induce harmful
side-effects. We must determine whether the claimed processes have transformed
these unpatentable natural laws into patent
eligible applications of those laws.
We conclude that they
have not done so and that therefore the processes are
not
patentable.
Our conclusion rests upon an examination of the
particular claims before us in light of the Court’s precedents.
Those cases warn
us against interpreting patent statutes
in ways that make patent eligibility
“depend simply on the draftsman’s art” without reference to the “principles
underlying the prohibition against patents for [natural laws].” Flook, supra, at
593. They warn us against upholding patents that claim processes that too
broadly preempt the use of a natural law. Morse, supra, at 112–120; Benson,
supra, at 71–72. And they insist that a process that focuses upon the use of a
natural law also contain other elements or a combination of elements, sometimes
referred to as an “inventive concept,” sufficient to ensure that the patent in
practice amounts to significantly more than a patent upon the natural law
itself.
Flook, supra, at 594; see also Bilski, supra, at ___ (slip op.,
4 at 14)
(“[T]he prohibition against patenting abstract ideas
‘cannot be circumvented by
attempting to limit the use of
the formula to a particular technological
environment or
adding 'insignificant postsolution activity' ” (quoting
Diehr,
supra, at 191–192)).
Those USPTO Guideline I quoted,
elsewhere, were written in 1995; well before Bilski and Mayo. A large proportion
of the invalid patents in existence resulted from these guidelines. I think you
will find
Interim Guidelines for Examination of Patent Applications for Patent Subject
Matter Eligibility is much closer to the law than the one in 1995 and all
of the misleading examples are gone.
--- Regards
Ian Al
Software Patents: It's the disclosed functions in the patent, stupid! [ Reply to This | Parent | # ]
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