Document Type

Working Paper

Publication Date

8-6-2008

SSRN Discipline

Legal Scholarship Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Intellectual Property Law eJournals

Abstract

According to wellestablished principles one cannot patent natural laws or phenomena per se but one can patent new and useful applications of those laws and phenomena Justice Breyers opinion in Laboratory Corp v Metabolite Labs Inc applies this distinction to inventions exploiting natural relationships such as a method of diagnosing a vitamin deficiency by observing elevated levels of an amino acid in a patients blood Justice Breyer concludes that patenting a method based on observation and reasoning amounts to patenting the natural relationship itself a result contrary to policy because it denies others a basic tool of research In fact the traditional dichotomy of principle and application suggests the opposite conclusion But there is a danger in such patents because of the critical role that knowledge plays in infringement The difficulty of avoiding infringement except by embracing ignorance could force the abandonment of activities having substantial noninfringing uses thereby conferring on the patent owner market power beyond the intended scope of the grant Rather than condemn all patents based on useful observations of natural laws or phenomena one should concentrate on those with undesirable and unavoidable spillover effects

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