In this final post, I shift ground a bit to talk about a case the Supreme Court will consider in its new term starting this fall. The case is known Bilski v. Doll. The Bilski case raises the basic question, when is a process too abstract to be patentable? The answer to the question will obviously be most pertinent to patents on things like computer software and methods of conducting business (such as finance or marketing strategies). But, depending on how the Court explains its decision, the case could have broader implications for whether people can patent other processes, such as a process for diagnosing an illness or for treating an illness.
Finally, I suggested two big questions that these new statutes left unanswered: (1) does a living organism other than a plant fall within the patentable subject matter categories for regular utility patents?; and (2) do plants, and seeds, fall within the patentable subject matter categories for regular utility patents? These questions, especially the second, are pressing because utility patent protection is stronger than either of the special protections designed just for plants.
Part 1: Monsanto sells a glyphosate-based herbicide called “Roundup.” Monsanto also sells seeds for crops – such as soy, corn, sugar beet, cotton, and others – that are genetically engineered to resist Roundup. Monsanto calls these seeds “Roundup Ready.” Patent law was critical to Monsanto’s business strategy, on both the herbicide and crop seed sides […]