San Francisco Chronicle Thinks Gravity is an Idea

By Gene Quinn
May 24, 2009

There are a lot of crazies coming out of the woodwork with respect to the ACLU’s efforts to have the patent laws of the United States declared unconstitutional.  Perhaps you have heard, the ALCU is standing up for breast cancer patients because Myriad Genetics has patented genes.  How awful really.  Not that Myriad has patented genes, because that is factually not at all what has happened.  What is awful is that the ACLU is telling lies and the public seems to be buying it, never mind the facts of the case or the lack of merit to the ACLU claims.  On top of that, in an editorial published today, the San Francisco Chronicle wrote that the law of gravity is an abstract idea.  Wow!  How can anyone take anything the article says seriously when such a ridiculous statement has been made?  Perhaps the San Francisco Chronicle should take the advice of Abraham Lincoln: “It’s better to keep your mouth shut and be thought a fool than to open it and remove all doubt.”

For those who can’t believe that the San Francisco Chronicle could be so uninformed, and reveal themselves to be uninformed without even knowing it, here is what the paper wrote:

Traditionally, the Supreme Court has held that no one is allowed to patent products of nature (like apples or gold), laws of nature (like E=MC squared) or abstract ideas (like gravity).

It is no wonder that the popular press is dying.  Newspapers no longer are about truth, and increasingly to stay afloat newspapers are willing to say anything, regardless of accuracy, in order to attract readers, keep their readers or get people like me to give them free publicity for simply not getting it.  Unfortunately, this is a trend that is gaining steam.  The one time paper of record, the New York Times, is nothing more than a Fiction Paper.  No one could hard call it a newspaper because when one things of a “newspaper” one thinks of truth and accuracy.  The New York Times has long since lost any hope of being taken seriously.  Maureen Dowd’s plagiarism is but the most recent in a growing list of cases where the New York Times gets things wrong, makes things up, or buries stories, such as the ACORN ties to the Obama Administration.

It would seem that getting any reliable truth out of the popular press on any issue is difficult, if not completely impossible.  Add to the equation that the popular press has never understood intellectual property, patents, copyrights and trademarks, and you can start to see that news reports on these issues are simply not reliable, and this case is no exception.  For example, lets actually look at some of the claims that the ACLU alleges are unconstitutional under Article I, Section 8 (which grants Congress powers to issue patents), the First Amendment and the Fourteenth Amendment.  Let us also remember that the claim is that these, and other claims, cover genes.

US Patent No. 5,709,999 is being challenged, specifically claim 1:

1. A method for detecting a germline alteration in a BRCA1 gene, said alteration selected from the group consisting of the alterations set forth in Tables 12A, 14, 18 or 19 in a human which comprises analyzing a sequence of a BRCA1 gene or BRCA1 RNA from a human sample or analyzing a sequence of BRCA1 cDNA made from mRNA from said human sample with the proviso that said germline alteration is not a deletion of 4 nucleotides corresponding to base numbers 4184-4187 of SEQ ID NO:1.

US Patent No. 5,710,001 is being challenged, specifically claim 1:

1. A method for screening a tumor sample from a human subject for a somatic alteration in a BRCA1 gene in said tumor which comprises gene comparing a first sequence selected form the group consisting of a BRCA1 gene from said tumor sample, BRCA1 RNA from said tumor sample and BRCA1 cDNA made from mRNA from said tumor sample with a second sequence selected from the group consisting of BRCA1 gene from a nontumor sample of said subject, BRCA1 RNA from said nontumor sample and BRCA1 cDNA made from mRNA from said nontumor sample, wherein a difference in the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA from said tumor sample from the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA from said nontumor sample indicates a somatic alteration in the BRCA1 gene in said tumor sample.

US Patent No. 5,753,441 is being challenged, specifically claim 1:

1. A method for screening germline of a human subject for an alteration of a BRCA1 gene which comprises comparing germline sequence of a BRCA1 gene or BRCA1 RNA from a tissue sample from said subject or a sequence of BRCA1 cDNA made from mRNA from said sample with germline sequences of wild-type BRCA1 gene, wild-type BRCA1 RNA or wild-type BRCA1 cDNA, wherein a difference in the sequence of the BRCA1 gene, BRCA1 RNA or BRCA1 cDNA of the subject from wild-type indicates an alteration in the BRCA1 gene in said subject.

US Patent No. 6,033,857 is being challenged, specifically claim 1:

1. A method for identifying a mutant BRCA2 nucleotide sequence in a suspected mutant BRCA2 allele which comprises comparing the nucleotide sequence of the suspected mutant BRCA2 allele with the wild-type BRCA2 nucleotide sequence, wherein a difference between the suspected mutant and the wild-type sequences identifies a mutant BRCA2 nucleotide sequence.

Obviously, these claims that are identified in the ACLU complaint simply do not cover genes, they cover diagnostic methods.  So the ACLU is either lying in order to gain public support for its own agenda, or they and their attorneys know so little about patent law and reality that they simply do not understand that they have made frivolous claims that are wholly baseless.  Either way, it is not good for the ACLU, and if I were the district court judge I would sanction the ACLU severely.

As for whether gravity is an idea or not, those familiar with gravity, which should be every man, woman and child on the planet, can readily testify that gravity is certainly not an idea.  Gravity is a given, a constant, a scientific truth and most certainly not an idea.  Whether you believe in gravity or not, its forces impact you and everything around you.

People often joke that the only two things that are certain in life are death and taxes.  Well, some people simply don’t pay taxes, either because they avoid them through shrewd manuvering or because they simply don’t pay them and the IRS doesn’t force them to pay.  The fact that we have to have a census ever 10 years ought to be proof to everyone that there are a lot of people that simply don’t pay taxes because if everyone paid taxes then we would have a yearly census.  But I digress.  The point I am trying to make is that those things that are certain in life really do not include death and taxes, they include death and gravity, which makes gravity far more than an idea if you ask me!

Thanks to IPBiz for bringing this San Francisco Chronicle editorial to my attention.

The Author

Gene Quinn

Gene Quinn is a Patent Attorney and Editor and founder of IPWatchdog.com. Gene is also a principal lecturer in the PLI Patent Bar Review Course and an attorney with Widerman Malek. Gene’s specialty is in the area of strategic patent consulting, patent application drafting and patent prosecution. He consults with attorneys facing peculiar procedural issues at the Patent Office, advises investors and executives on patent law changes and pending litigation matters, and works with start-up businesses throughout the United States and around the world, primarily dealing with software and computer related innovations. is admitted to practice law in New Hampshire, is a Registered Patent Attorney and is also admitted to practice before the United States Court of Appeals for the Federal Circuit. CLICK HERE to send Gene a message.

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com. Read more.

Discuss this

There are currently 28 Comments comments.

  1. Robert McNab May 25, 2009 10:31 am

    Good morning: Thought you would like to review this article, which appeared in today’s Toronto Daily Star. Title “Two clicks & you’re out, panel rules” Operating method patents face rough ride under Canadian statute.

    http://www.thestar.com/article/639694

    This article was authored by a patent law professor at the University of Ottawa.

    Best wishes

    Robert McNab

  2. Ben Northrup May 25, 2009 11:15 am

    Gravity, while well documented, is an idea with no explanation. Current theories are speculations. ben

  3. David Koepsell May 25, 2009 11:40 am

    Oh, man. Gene, you’re still at it aren’t you?

    The natural law of gravity is clearly not patentable subject matter. You agree with that much, right? Review Gotschalk v. Benson for clarity on that one. Also, just because the claims that Myriad filed include the word “method” doesn’t automatically make them valid. Consider the following claim:

    A method for determining the energy component of a particular mass employing the formula E=MC^2

    Would you allow that patent?

    Discuss.

    best,
    David

  4. Gene Quinn May 25, 2009 12:54 pm

    David-

    I am not suggesting that gravity should be patented, but to call gravity an “idea” seems fairly absurd to me. I am not sure one can legitimately call a scientific truth an “idea.”

    I also surely agree that just because these claims are methods does not make them valid, but validity should be determined based on 102 and 103. The Supreme Court has settled the question about whether living matter is patentable, so it seems clear to me that under 101 these patents are going to survive. Certainly the ACLU is capable of arguing on a good faith basis for a change in the law, but I believe legal requirements mandate that the ACLU acknowledge that their arguments are against well settled principles and are asking for a change in the law. I personally think the Article I, Section 8 claim is bogus, and the First Amendment and Fourteenth Amendment claims far reaching and ridiculous, but they are entitled to make those arguments. The problem I have is with claiming that diagnostic methods are genes. That is simply not true and that type of incorrect statement, which is either made knowingly or without care of the truth, is tainting the public debate. I am not a fan of such treachery to suit a particular agenda.

    I would have to say that I don’t think the hypothetical claim you propose is patentable. When it comes to equations the question is whether the patenting of a particular “invention” would remove the equation or whether it simply uses the equation in a certain context. It would seem to me that if this patent were granted then the equation would be patented because the claim essentially is nothing more than the equation.

    I really think you and I see things the same, but as if we are sitting at different table in the courtroom.

    I hope all is well.

    -Gene

  5. David Koepsell May 25, 2009 1:07 pm

    Chakrabarthy and Moore stand for the proposition that engineered living things are patentable, even if they are derived from human tissues. The difference is, the Myriad patents cover sequences that occur in nature. That much of those claims are invalid, just as a claim to any law or unmodified product of nature would be.

    sigh.

    round and round.

  6. Gene Quinn May 25, 2009 3:57 pm

    David-

    I think we agreed in a previous post that the method claims are likely not invalid, correct? Can you try again and tell me why you think the other claims would be invalid? It seems to me that they discuss alteration and isolation, which should suffice Chakrabarthy.

    -Gene

  7. David Koepsell May 26, 2009 2:03 am

    Dear Gene,

    I do believe those method claims are invalid to the extent that the word “method” doesn’t actually make them into a patentable method. See my example of the theory of relativity above, and more below. Moreover, discussing isolation and alteration doesn’t suffice when you are not ACTUALLY isolating or altering anything. Let me give you more examples:

    claim: method of isolating the letter “A” for use in finding the letter “A” in a string of letters. This method isolates the latter “A” from its natural state at the beginning of the alphabet.

    how’s that? Have I isolated and altered anything which makes it worthy of a patent?

    or this : a method of isolating the geographic feature “The Devil’s Tower” from the surrounding landscape for use in finding the Devil’s Tower on a map. This method isolates the Devil’s Tower from the surrounding landscape by drawing an arbitrary border, and alters it’s natural state by omitting the surrounding landscape.

    Does this make my depiction of the Devil’s Tower suddenly susceptible to IP law? We can do this with any natural feature, like the human eye (whose natural state is in an eye socket) The point is, that isn’t inventive at all this supposed isolation and alteration, and doesn’t turn something natural into something novel, non-obvious, and useful. And as each of my examples shows, the use of the word “method” doesn’t automatically save these claims either.

    We can always debate this at my site if you want: http://whoownsyou-drkoepsell.blogspot.com/

    best,
    David

  8. Robert K S May 27, 2009 5:08 pm

    The fact that the laws of gravitation were once unknown to humanity indicates that gravity can properly be called an idea. No need for a jeremiad based on a semantic distinction. The rest of the post raises valid points, but, Gene, you do have a tendency to veer off on irrelevant tangents. Thanks for all your work, and cheers.

  9. Gene Quinn May 27, 2009 7:10 pm

    Come on Robert. Gravity is an idea?

    You are right though, I do veer off from time to time, picking a topic to get me started and then going where it takes me. This is certainly an article evidencing that.

    Thanks for reading!

    -Gene

  10. David Koepsell May 28, 2009 3:55 am

    Gravity is a law of nature, the law of Gravitation is the expression of an idea — a model explaining that law of nature. Relativity is a law of nature. Einstein’s depiction of relativity is a model explaining the law of nature. Automobiles are artifacts, created only by the intention of human beings, conceived entirely by minds, and not pre-existing in nature. Ideas only exist in minds, and they are not prone to IP protection, only their expressions are, and only when conceived of by human beings and not already a part of nature (thus the new, non-obvious, and useful requirements of patent).

    Mathematical formulas which express equivalences in nature are models depicting laws of nature. Those laws of nature pre-exist minds, and the mathematical formulas depicting those laws of nature are not inventions but rather attempts to explain fundamental truths of nature:

    thus…
    “Formula: in mathematics and physics, equation expressing a definite fixed relationship between certain quantities. The quantities are usually expressed by letters, and their relationship is indicated by algebraic symbols. For example, A=?r2 is the formula for the area A of a circle of radius r, and s= 1-2at2 is the formula for the distance s traveled by a body experiencing an acceleration a during a time interval t.”

    Now, these truths of nature are distinct from the methods by which we can discover truths of nature, which may be patentable because they may involve new technologies, algorithms, processes, etc. that help us to conduct empirical studies of nature.

    The gene sequences that are claimed by Myriad (even though they tack on the word “method” as I mention above, this fails to truly make a new method… e.g. my alphabet example) constitute things that are part of nature, have been for a long time, and are not the product of human inventiveness. The test, if it involved a new process, might well be patentable, but it isn’t because it actually is a test for finding sequences that is generally employed in science.

    Back to your post: the law of gravitation, devised as a model by humans to explain a natural phenomenon, is clearly not patentable subject matter because it is not the result of human in inventiveness. It is an expression, and an attempt to explain a law of nature.

  11. breadcrumbs May 28, 2009 7:04 am

    David,

    No one is arguing that gravity is patentable subject matter.

    No one is arguing that the law of gravity is patentable subject matter. Except perhaps you are.

    There is a subtlety regarding:
    “Now, these truths of nature are distinct from the methods by which we can discover truths of nature, which may be patentable because they may involve new technologies, algorithms, processes, etc. that help us to conduct empirical studies of nature. ”
    that you may find interesting.

    While I do not hold that all math is patentable, math is purely an expression of the human mind and a tool that helps us to conduct emperical studies of nature. There is a philosophy behind the tool that is also called math. That philosophy is also purely an expression of the human mind.

    You make the distinction that artifacts are prone to IP protection while ideas are not. You point out that expressions of ideas are prone to IP protection. Thus, based on your premises, both the Newtonian Law of Gravity and Einstein’s Theory of Relativity, which are both expressions, models or constructs of the human mind describing (and thus apart from) nature, are prone to IP protection. The math used in these theories are tools to help us conduct emperical studies of nature. Specifically as the Newtonian Law of Gravity does not hold true for certain scales of size, the theory itself is not nature and is not already a part of nature. While you state that the law of gravitation is not the result of human inventiveness, this statement does not flow from the logic you present. The theory clearly is a result of human “inventiveness” and is indeed an expression of the human mind and an attempt to explain (or model) a law of nature. It is not nature itself, but rather the human construct of how we believe nature works.

    You say No, but your logic says Yes.

  12. David Koepsell May 28, 2009 7:49 am

    Gene,

    Then you ARE actually arguing that the laws of gravity are patentable, if you actually think that math is “purely an expression of the human mind” which is just wrong. The laws of mathematics are inherent in nature. 2+2 can never equal 5, not because of human minds, but because this is how nature is. The expression of such truths could never be patentable, because these expressions are depictions of facts about the universe and nothing new at all.

    Newtonian laws and the laws of relativity are also not inventions of minds, just expressions of rules inherent in nature regarding in the one case, the attraction of masses, and in the other, the relations between mass and speed, and mass and energy. You seem to have a very warped sense of “ïnvention”

    The steam engine is an artifact, which although it uses certain natural principles, is entirely the product of human inventiveness. The genes responsible for a propensity toward breast cancer are just like the laws of mathematics, relativity, and gravity: they are inherent in and entirely the products of nature. Now, if someone invents a new technology, process, or product for measuring natural phenomena, then God bless ’em, get a patent for those, but in no case do they warrant protection over the parts of nature they are measuring (which Myriad, by the way, has asserted claims over since they sought to prohibit scientists from replicating those genes in laboratories for breast cancer research).

    Devising models that depict natural laws are matters of discovery, not invention. The theory is an analogue to the natural law, if it’s a good theory, in which case it is a depiction of something that already exists, and thus not new.

    You’re losing this battle my friend, your logic is the one that doesn’t add up. And logic isn’t a human invention either, unless you’re some sort of post-modernist, which I suspect you’d claim not to be.

    best,
    -dk

  13. David Koepsell May 28, 2009 8:09 am

    Here’s a blog post responding more fully to your confused ontology, I am also pasting it below. If you can find anything wrong with it, please feel free to let me know via a comment at my blog. Thanks….

    http://whoownsyou-drkoepsell.blogspot.com/2009/05/some-basic-ontology-of-ideas-artifacts.html

    Some basic ontology of ideas, artifacts, and natural kinds
    Some subtleties bear discussion surrounding the ACLU/Myriad suit, and the general legal prohibition against owning “ideas.” As with many legal confrontations, one of the problems involves the unclear use of terms by the courts. Specifically, while the Supreme Court has prohibited patents over laws of nature before because they would “amount to” owning ideas, this is not the real reason why laws of nature cannot be patented. Well, it is, sort of, but let’s evaluate the various things and see why we cannot own laws of nature:

    Law of Nature: these are inherent in nature, thus they are not new or inventive. Thus, I cannot claim a monopoly over the phenomenon that attracts bodies to each other. Nor can I try to own the phenomena that causes 2 multiplied by itself to equal 4. Nor can I won the phenomenon that causes energy to be released from hydrogen molecules when they are fused (the sun has been doing this for a long time), nor can I own the phenomenon that makes human females more prone to cancer when they possess a certain string of genes, nor can I lay claim to that string of genes which has been a product of evolution for eons.

    Expressions: Expressions are the products of human minds, they are the ways that ideas are transmitted between people. The ideas might be new, for instance, of a unicorn, a steam engine, a warp drive, a new combination of genes not already occurring in nature. They may be of old things, like the natural processes of evolution, the laws of relativity or gravitation, or of a string of genes that evolution created.

    Artifacts: These are a form of expression, specifically objects that endure — what we might call continuants.

    Other expressions: Occurents, like a dance, a speech (if not recorded), and other expressions of ideas that do not last after the event.

    So far, the law of intellectual property has only been applied to a particular kind of continuant, specifically only those that express ideas not otherwise found in nature – new ideas. So, an expression of the laws of nature is excluded subject matter, not because it is an idea, but because it is an expression that is not of something new. A scientific theory is a good theory if and only if it bears a good correlation to the laws of nature, such that it accurately predicts experimental results.

    Is gravity an “”idea”? Yes, inasmuch as the abstract entity — the law of gravitation has been working on the universe since the universe began, just as the abstract entities of mathematics have been making 2 + 2 = 4 for billions of years before humans figured out that it wasn’t just a good idea, it was the law.

  14. Gene Quinn May 28, 2009 9:33 am

    David-

    You say: “So, an expression of the laws of nature is excluded subject matter, not because it is an idea, but because it is an expression that is not of something new.”

    I don’t think that is the case at all. While laws of nature are hardly new, it has nothing to do with the fact that they are not new. Laws of nature have been determined to be unpatentable under section 101, which does not relate to “newness.” Although the term “new” is used in section 101, this section is not applied to determine if something is novel and warrants a patent, but rather only used to determine if the category of invention (or alleged invention) is capable of receiving a patent. It is a threshold inquiry.

    Laws of nature are not patentable because it is a truth. The fact that you discover something does not mean you have a patentable invention. If discoveries were patented that would be problematic because it would lock up scientific truth. This is the fallacy that many make when they claim that patent harm innovation. That is a claim without any evidence, and with mountains of evidence to the contrary. Invention starts with a discover and what is protected is application, not the discovery itself.

    You also perpetuate the fallacy that gravity is an idea. Gravity is no more an idea than “the sky is blue.” It is the natural state of affairs, a scientific truth. The problem is you are trying to defend an unsupportable statement. The law considers gravity to be a law of nature, not an abstract idea. If you think gravity is an abstract idea go to the nearest stairwell and jump off (only from 1 step high though so not to hurt yourself). When you land that will certainly demonstrate that gravity is more than idea.

    _Gene

  15. Gene Quinn May 28, 2009 9:38 am

    David-

    You say: “Then you ARE actually arguing that the laws of gravity are patentable…”
    You say: “You’re losing this battle my friend, your logic is the one that doesn’t add up.”

    First, I am not losing this battle. The fact that you are ignoring what I am saying and putting words in my mouth that I never said does not mean that I am losing. It does, however, strongly suggest that you are unable to win, which is why you have to make stuff up.

    I never said gravity was patentable, never implied gravity was patentable, and I don’t appreciate you twisting things to suit yourself. There is really no point responding to you any further. Given that you are making stuff up at this point (just like the ACLU) it has to be apparent to everyone that you have admitted defeat and are retreating into distortion.

    _Gene

  16. David Koepsell May 28, 2009 9:58 am

    Your notion of ideas is strange…

    Please note that abstract entities, i.e. laws of nature, exist as parts of nature (as I said), just like the laws of mathematics, and the laws of genetics, etc., all of which can be discovered, but not patented. We agree on that much, yes?

    Just because something is an idea or an abstract entity, does not mean it is not real. Ideas are real, my friend. IP only protects new, useful, non-obvious expressions of a certain type of idea — those that are new. Gene sequences existing in nature do not qualify, by any reasoning.

    Perhaps the confusion is in conflating an idea in a human mind with an “ideal” in the Neo-Platonic sense, which is an abstract entity that subsists in the universe itself. Mathematics is a prime example (forgive the pun), because no amount of jumping off stairs will prove mathematics to be true. Yet the laws of mathematics are not any more patentable, as they are part of the fabric of the universe and not human inventions.

    anyway, sorry if I offended, it’s critical to get a handle on terminology and essences, and the courts have done a poor job of it too so the precedent is a bit unreliable. Just trying to do my part.

    best,
    David

  17. David Koepsell May 28, 2009 10:04 am

    …and actually, laws of nature are not the same as scientific theories, which are not patentable either. Theories approximate truth, but they are always provisional, contingent, and subject to falsification. So their “truthiness” cannot be the reason they are not patentable….

    see here for more on truth and theory: http://www.experiment-resources.com/truth-and-theory.html

    best,
    -d

  18. Gene Quinn May 28, 2009 12:55 pm

    David-

    After my last response to you I had an appointment and was in the car driving and pondering things. I sense there is a big difference in how we are understanding the meaning of “idea.” That is a very loaded word in patent law, particular for those who work with independent inventors and small businesses, thanks to the fact that real scam artists advertise to those who are not sophisticated patent consumers that they can patent ideas. So there is a big distinction between an “abstract idea” and what patent law would call a “conception.” There is even further a big distinction between “conception” and a realized (or at least provable) invention.

    I think we are dancing a semantic dance that is not productive. I probably won’t have time to get a post done before next week, but I think one is in order regarding ideas vs. inventions. I also think I am getting preoccupied with your talk of “expression” which is another loaded term in copyright terms.

    As for your specifics here, we are definitely in agreement that there are plenty of things that can be discovered but not patented.

    Stay well, and keep your thoughts coming. They push me. Like I have said before in other threads, I think we agree far more than we disagree.

    -Gene

  19. David Koepsell May 28, 2009 3:14 pm

    I look forward to it, Gene…. I use the term “expression” for all man-made, intentionally produced continuants, which are the only sorts of things afforded either copyright or patent. I also argue in my book, The Ontology of Cyberspace: Law, Philosophy, and the Future of Intellectual Property http://www.amazon.com/Ontology-Cyberspace-Philosophy-Intellectual-Property/dp/0812695372/ref=sr_1_2?ie=UTF8&s=books&qid=1243537839&sr=8-2 that the distinction between patentable and copyrightable objects is a distinction without a difference, as the utility of copyrightable objects is primarily aesthetic, and patentable objects are simply those with utilities primarily other-than-aesthetic. So “expression” covers all man-made, intentionally produced continuants… of course, there are occurent expressions too, but those don’t get protection for pragmatic reasons.

    I enjoy the discussion. Maybe we can continue it when you post on abstract ideas and conceptions.

    best,
    David

  20. breadcrumbs May 28, 2009 4:17 pm

    May I cut in?

    Alas David, I am guilty of greasing the floor that you and Gene are waltzing upon.

    This indeed appears to be a matter of semantics and metaphysics. Please indulge this additional and admittedly lengthy post. “it’s critical to get a handle on terminology and essences, and the courts have done a poor job of it too…” – We can dance the metaphysical ontology some more, if you wish, but perhaps you should realize that the dance floor is named Law, not Science, so when you criticize for mistaken terminology and bring your science terminology into the law arena it is you who may be wearing clown shoes on the dance floor.

    “Gravity is a law of nature, the law of Gravitation is the expression of an idea — a model explaining that law of nature. Relativity is a law of nature. Einstein’s depiction of relativity is a model explaining the law of nature. Automobiles are artifacts, created only by the intention of human beings, conceived entirely by minds, and not pre-existing in nature.”

    If you mean to say that “inventables” are not raw materials that can be found in nature and must be either raw materials made by man or nature’s raw materials transformed into something that is not found in nature, then we may agree. If you leave it at ‘models’, then you run into the philosophical dilemma that a model, no matter how closely approximating to nature it may be, is NOT nature. You pointed to the link http://www.experiment-resources.com/truth-and-theory.html , which has a link to another article about realism and antirealism – you might say that my view on this runs closer to the antirealism school – it’s funny that I used the example of “Specifically as the Newtonian Law of Gravity does not hold true for certain scales of size, the theory itself is not nature and is not already a part of nature.” prior to reading your link which uses the exact same example.

    “Ideas only exist in minds, and they are not prone to IP protection, only their expressions are, and only when conceived of by human beings and not already a part of nature (thus the new, non-obvious, and useful requirements of patent).”

    Your dilemma that I was trying to subtlety point out is that this logic of your initial post is not complete. Models of gravity and relativity by Newton and Einstein are expressions, conceived of by human beings, and CANNOT be a part of nature. They are merely models approximating nature. As your linked article, and articles linked to that article, explains, these models are NOT nature. So to use your initial logic as stated: not nature, conceived of by human beings and expressions of ideas – hmmm, sounds like these are prone to IP protection

    “Mathematical formulas which express equivalences in nature are models depicting laws of nature. Those laws of nature pre-exist minds, and the mathematical formulas depicting those laws of nature are not inventions but rather attempts to explain fundamental truths of nature…”

    “Newtonian laws and the laws of relativity are also not inventions of minds…”

    “inventions” of minds may be too confusing given the use of the word invention, if you like, try “creation” of minds. Or do you think that Newton and Einstein deserve no credit for formulating the expressions that bear their names (OK, outside of the contention that Newton stole the idea from Hooke).

    Taking the antirealism school of thought, or even the realism school of thought, or even your own words, the models are ATTEMPTED DEPICTIONS. The models themselves are NOT nature. While it may be true that the actual natural laws may pre-exist minds (I know some existentialist philosophers who would debate that point), the mathematical formulations themselves do not pre-exist minds and simply CANNOT pre-exist minds as they are indeed the products of minds.

    “Now, these truths of nature are distinct from the methods by which we can discover truths of nature, which may be patentable because they may involve new technologies, algorithms, processes, etc. that help us to conduct empirical studies of nature. “

    It can be posited that truths of nature are distinct from methods, but that the models and the math created by man are not distinct from “methods”, that the models and the math ARE themselves methods and tools created by man to help conduct studies of nature. Here is the logic that trips you – you acquiesce to the patentability of methods without realizing that the mathematical models are themselves methods. In this manner you still say No, but your logic still says Yes. Mind you, I am NOT saying these are patentable, and I should correct my earlier statement about you saying that they are patentable. Your initial logic indicated “prone to IP protection” which may not be the same as “patentable”.

    “Devising models that depict natural laws are matters of discovery, not invention. The theory is an analogue to the natural law, if it’s a good theory, in which case it is a depiction of something that already exists, and thus not new.”

    ah, now you add that it must be a ‘good’ theory. But what about disproven theories and paradigm shifts? How do you balance the antirealism point of view?

    Further, regarding the supposedly confused ontology and your link to http://whoownsyou-drkoepsell.blogspot.com/2009/05/some-basic-ontology-of-ideas-artifacts.html , you set some definitions absent from your initial post:
    “Artifacts: These are a form of expression, specifically objects that endure — what we might call continuants.
    Other expressions: Occurents, like a dance, a speech (if not recorded), and other expressions of ideas that do not last after the event.
    So far, the law of intellectual property has only been applied to a particular kind of continuant, …”

    Now, we could debate your definitions from law, science or philosophical angles and get into a discussion of artifacts versus occurents (occur over a span of time ) and the nature of time – as time is relative and artifacts also occur over a span of time. We could also debate your division between “patentable idea’ and “found in nature” as an arbitrary (and false) distinction – take for example, the idea of flight: there are things in nature that fly and yet the expression of flight is definitely patentable. By the way, occurents such as performing arts may also be prone to IP protection, so you may need to redefine your distinctions to take that into account as the law of intellectual property reaches there too. We could continue to debate on these and other semantics, but I think you may get the point about which dance floor you are two-stepping on.

    Finally, stepping off the dance floor and away from the semantics, I agree with Gene when he states “I don’t think that is the case at all. While laws of nature are hardly new, it has nothing to do with the fact that they are not new. Laws of nature have been determined to be unpatentable under section 101, which does not relate to “newness.” as well as when Gene states “Invention starts with a discover and what is protected is application, not the discovery itself.”

    Thank you for your indulgence. And the dance.

  21. 6istheman May 28, 2009 5:22 pm

    “The underlying notion is that a scientific principle, such as that expressed in respondent’s algorithm, reveals a relationship that has always existed.

    “An example of such a discovery [of a scientific principle] was Newton’s formulation of the law of universal gravitation, relating the force of attraction between two bodies, F, to their masses, m and m’, and the square of the distance, d, between their centers, according to the equation F=mm’/d^2. But this relationship always existed — even before Newton announced his celebrated law. Such ‘mere’ recognition of a theretofore existing phenomenon or relationship carries with it no rights to exclude others from its enjoyment. . . . Patentable subject matter must be new (novel), not merely heretofore unknown. There is a very compelling reason for this rule. The reason is founded upon the proposition that, in granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed.”

    P. Rosenberg, Patent Law Fundamentals, § 4, p. 13 (1975).”

    It is true they used 101 to deliver the deathblow, but their rational follows 102/103.

  22. Gene Quinn May 28, 2009 6:52 pm

    breadcrumbs-

    Indulgence granted, and well played, or nice dance, as the case may be.

    -Gene

  23. David Koepsell May 29, 2009 1:01 am

    Breadcrumbs:

    As a dyed-in-the-wool realist myself, if you’re of the anti-realist/post-modernist bent, it’s likely we won’t ever agree. Two small points: I never limited myself to models, not sure where you got that. Also, my conclusion was that laws of nature are abstract entities, which I suppose we could call “Ideals” in the Platonic sense, and this is why they ought not be patentable. The courts make errors conflating these things with “ideas” per se.

    Mathematical “models” are clearly not patentable,, insasmuch as they are equivalences discovered in nature. New algorithms might be patentable, since they are generally not equivalences, but rather procedures created by man. The pythagorean theorem always existed in nature, and was merely discovered by man. This is the point of Plato’s demonstration, which I repeat often with logic students. No one could invent a different relationship between the sides of a right triangle.

    I see no reason to “balance” the antirealism point of view, given that it’s wrong. Sorry, I’m no post-modernist. I believe that things exist apart from our minds.

    As a lawyer myself, I know that courts make errors frequently, confusing language, and inexact definitions. But they shouldn’t, and law ought to reflect the real world as much as possible.

    Interesting points, and like Gene, I appreciate the debate to help sharpen my points.

    best,
    David

  24. David Koepsell May 29, 2009 7:44 am

    … a bit more for breadcrumbs:

    On knowing the dancer from the dance: the dancer is the continuant, the dance that he does is the occurent, and they are distinct entities, although the dance is ontologically dependent upon the dancer. All occurents are ontologically dependant upon a continuant, and not vice versa. This is how we can distinguish these sorts of entities.

    A continuant lasts over a span of time, and the occurent is “the lasting, sitting, dissovling, etc. of the [statue, rock, table, etc.]” but this is distinct from the continuant upon which the occurent depends.

    best,
    David

  25. Isaac Galileo Einstein August 19, 2009 12:05 pm

    Hmmm. If gravity is not an “idea”, then what is it? The force that one massive object exerts upon another is not “gravity”, it is the “force of gravity”. The field that surrounds massive objects and that exerts the force of gravity on other massive objects is not “gravity”, it is the “gravitational field”. The laws of gravity describe the ways in which gravitational forces act. None of the formulae that express the laws of gravity include any component called “gravity”. “Gravity” has to do with the relationship between “mass” and “weight”, but we cannot say what it “is”. Mass, of course, does figure in numerous scientific formulae, but we can barely say what IT “is”, and weight depends on both mass and gravity.

    Some dictionaries will tell you that “gravity” IS the “force of gravity”, but I think you’d find few physicists who would agree with that. Even so, what is a “force”? What is a “field” by which a force is transmitted? They are concepts or ideas that have a relationship with and facilitate our understanding of the reality that we observe.

    You can observe an apple falling to the ground. You can postulate a force that attracts the apple to the ground. You can conduct experiments, measuring weights or masses and distances and times, and on the basis thereof you can write a formula that is consistent with all of your measurements and observations. And in the end you can call the force that you have postulated “gravity” or say that it is caused by something that you choose to call “gravity”. To the extent that “gravity” “exists”, it exists by definition, by virtue only of the conception of the idea of gravity as a descriptor of what you have observed and measured.

    Personally, I think it’s fair to say that “gravity” is a concept or idea by which we seek to understand certain aspects of the observable behaviour of the physical universe.

    And if you’re still not convinced that “gravity” is an idea, what about “entropy”. Is it different? How?

    Any expression of any law of nature is an abstract idea. That expression is “true” to whatever extent it is or remains consistent with observed reality. Any patent claim pertaining to a newly formulated law of nature must define a thing or process that somehow depends on the existence of that newly formulated law, that is useful in a practical sense, and that is enabled across its full scope by the related disclosure of the law and of its practically useful applications.

    Gravitational forces had been usefully applied for millennia before the laws of gravity were formulated. The formulation of those laws surely enabled the forces of gravity to be exploited for practically useful purposes in countless new ways – some obvious, some not. You could argue that the mere formulation of the laws “enabled” their obvious applications. You couldn’t argue that it “enabled” their non-obvious applications. Would you argue that a person who newly formulated a law of nature should be granted exclusive rights to all OBVIOUS practically useful applications of that formulation? Would you argue that a person who newly formulated a law of nature should be granted exclusive rights to all NON-OBVIOUS practically useful applications of that formulation?

    A newly formulated law of nature is not practically useful in and of itself, and therefore should not be patent-eligible subject matter. Non-obvious practically useful applications of a newly formulated law of nature should be patentable, to the extent that they are enabled by the patent specification.

    Should obvious practically useful applications of a newly formulated law of nature be patentable by the “inventor” of the newly formulated law of nature?

    There’s no “correct” answer to that question. It is purely and simply a policy decision. If the statute does not answer it unequivocally, the statute should be amended to do so.

  26. Gene Quinn August 19, 2009 12:28 pm

    Sir Isaac Einstein-

    Gravity is not an idea, and it is pure folly to suggest that it is an idea. Gravity is a scientific truth, and you can play all the word/philosophy games you choose with your physics buddies and that will never change, which is why I continue to remain unconvinced.

    -Gene

  27. Isaac Galileo Einstein August 19, 2009 12:43 pm

    or… gravity is a scientifically true idea…

    OK, we can agree to differ – so what about entropy?

  28. Gene Quinn August 19, 2009 1:11 pm

    Isaac-

    I think the right way to characterize entropy is as descriptive.

    I think a part of the problem with describing what is an “idea” is that the term “idea” has specific meaning in patent speak. I would not call entropy an idea in the way that it is used in the patent world. An idea, or “mere idea” is a “wouldn’t it be great if” moment. An idea is different from conception in that when there is a conception there is an idea meeting the knowledge how to bring the idea through to fruition. For example, time travel would be an idea. An actual reduction to practice would be an H.G. Wells time machine. The conception would be the knowledge how to bridge the gap between the idea and the reduction to practice. Conception is the point when you know what you have in a concrete enough way for us to know you will get to the reduction to practice.

    This may all seem like a mountain out of a mole hill, but what happens in the patentability debates is people start with the point “you cannot patent an idea,” which is 100% correct. Then they define “idea” however they like to fit to their understanding and conclude “see, X shouldn’t be patented and you agree with me.” Not so fast! Just because an idea cannot be patented doesn’t mean that software shouldn’t be patented, for example. Software is not an idea. It is the manifestation of an idea in a practical application.

    This being the case, we need to keep “laws of nature” separate from “ideas” and “mathematical equations.” Entropy would likely be legally considered to be a law of nature because it is descriptive of a characteristic. It might also be considered a mathematical equation by some judges, but the fact that the equation is descriptive suggest to me it is not math. We use math to measure and understand a particularly phenomena.

    -Gene