According to well-established principles, one cannot patent natural laws or phenomena per se, but one can patent new and useful applications of those laws and phenomena. Justice Breyer’s opinion in Laboratory Corp. of America Holdings v. Metabolite Laboratories, 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 patient’s 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. These patents are dangerous, however, 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, courts should concentrate on those with undesirable and unavoidable spill-over effects that cause avoidance or modification of activity not reserved exclusively to the patent owner.
Case Comment: Bhogaita v. Altamonte
EVERY DOG CAN HAVE HIS DAY IN COURT: THE USE OF ANIMALS AS DEMONSTRATIVE EXHIBITS Kyle R. Kroll, Volume 100, Online Managing Editor In Bhogaita v. Altamonte, the Eleventh Circuit recently decided whether to allow a dog in the courtroom as a demonstrative exhibit. Although the case presented many serious [...]
Revisiting Water Bankruptcy
REVISITING WATER BANKRUPTCY IN CALIFORNIA’S FOURTH YEAR OF DROUGHT Olivia Moe, Volume 100, Managing Editor This spring, as “extreme” to “exceptional” drought stretched across most of California—indicating that a four-year streak of drought was not about to resolve itself—Governor Jerry Brown issued an unprecedented order to reduce potable urban water [...]
Defying Auer Deference
DEFYING AUER DEFERENCE: SKIDMORE AS A SOLUTION TO CONSERVATIVE CONCERNS IN PEREZ v. MORTGAGE BANKERS ASSOCIATION Nicholas R. Bednar, Volume 100, Lead Articles Editor* On March 9, 2015, the Supreme Court of the United States handed down its decision in Perez v. Mortgage Bankers Association. The Court overturned the D.C. [...]