The Supreme Court ruled unanimously today that it is impossible to patent a naturally-occurring gene. Justice Clarence Thomas, writing for the majority, said that a gene was a “product of nature and not patent eligible merely because it has been isolated,” but artificially created genes could be patented.
Patents are a hot-button issue right now, especially in light of a recent report from This American Life about Bellevue-based Intellectual Ventures. President Obama has issued a plan to combat patent trolls, and has suggested that Congress take legislative action.
I got in touch with Harry Surden, Associate Professor of Law at the University of Colorado Law School, to ask him about what today’s ruling might mean for a key component of the current patent controversy: software patents.
“I don’t believe that the Myriad case opened the door at all for categories of patent that are so different from DNA patents,” he wrote in an email. “The Myriad decision was very narrowly focused upon patents on isolating DNA sequences. … Although both DNA patents and software patents are evaluated at a high level under a common legal rule — section 101 of the patent code — the “Patentable Subject Matter” rule (35 USC 101), at a lower level, they involve very different considerations and implications.”
The last time the Supreme Court came close to discussing software patents was as a part of Bilski v. Kappos, which dealt with the legality of so-called “business process” patents. In that case, Justice Kennedy, writing for the majority, made certain to say that the court didn’t want to address the legality of software patents as a part of that case. Right now, there hasn’t been anything to show that their reluctance in Bilski has gone away.
“I haven’t seen anything to suggest that the Myriad decision indicates any change since Bilski,” Surden wrote.
But Surden added that there’s still reason to believe there might be change on software patents further down the line.
“There seemed to be a sizable minority in the dissenting opinion in Bilski that would consider prohibiting software patents, so it would probably only take one or two justices from the majority to switch for this to occur,” he wrote.
Even though it seems like the court isn’t interested in going after software patents, that doesn’t mean the patent ecosystem will stay the same. Surden cited the Court’s recent history of changes to policy law that directly affected patent trolls as a reason to believe that we might see more action from SCOTUS on “non-practicing entities” in the near future.
