Since you have made clear your question is not related to patenting Human
body parts - I'll leave that out of the discussion. Especially since I've
already answered quite clearly to my position on patenting the human body (no
matter how small a "slice"). So that's on the record quite nicely.
I was
thinking about the recipe thing. And I realized I was conflating the difference
between "the expression of the recipe" and the "creation of the recipe". It was
also being influenced by a prejudice based on "the history of cooking".
A
patent is obviously not appropriate for "the expression of the recipe". So that
should - quite clearly - be non-patentable subject matter.
This is where
Congress may have introduced "process". The "process of creating the physical
product from physical ingredients" outlined in the expression of the recipe.
This raises two questions:
a) should the end result of the process pass
basic 101 patentability
b) should the process itself pass basic 101
patentability
The end result is analogous to the end result of the actual
mousetrap. As a result, it seems to have an easy answer:
With the
exceptions of
- the end-result must have physical existence
- the
end-result can not be something that occurs in nature (either in part or in
whole)
then it should pass basic 101 patentability.
In the
context of baking a cake. The cake - not the concept of a cake, but the
specific physical cake itself - does pass basic 101 patent eligibility. Given
the history of cooking - it absolutely should fail due to obviousness and/or
prior art.
That brings us to the second question. Which is where I've
been having trouble understanding "when a process should be patentable". As I
have less understanding - it is more difficult to reason through and come to a
clear position.
But another attempt it will be.
Should the process of
baking a cake be patent eligible?
To put in the context of the
mousetrap:
Should the process of creating the mousetrap be patent
eligible?
Obviously the tools involved in the process are end results
themselves and based on previous reasoning pass basic 101 patentability. So the
screwdriver you used to put the parts of the mousetrap together is patentable in
and of itself.
But the process:
base secured to lever, spring secured
to both lever and base
Should that process be patent
eligible?
Gut/instinct/sixth sense/whatever tells me no.
But I think
that's because the example is bad. It's bad because it uses already existing,
well known processes and the only difference is "what do you attach to
what". As a result - if it passed basic 101 eligibility - it
should clearly fail due to prior art and obviousness. Just because the
end-result product is different from another product made by using the exact
same process (with even the same "ingredients") doesn't make the process pass
obviousness or prior art.
So... the answer may lie in eliminating the
consideration of failure of "beyond 101" to focus on the considerations of
"basic 101".
Using the cooking context... let's say no one knew how to
"fold" an ingredient into another. All the cooking ever known produced products
that never used folding. We would certainly have cakes... but not as light and
fluffy as they could be.
Scenario:
A chef is exploring different ways
that one could perhaps mix the ingredients of the cake in order to see what kind
of differences in texture results. He has a few hirelings performing the
different mixing types and one of those hirelings is really lazy. He notices
the hireling isn't really even mixing his ingredients and is likely
day-dreaming... whatever. After the baking process - he's surprised the lazy
hireling made the fluffiest cake he's ever had.
He has the process repeated
and ends up with the same result. Noticing the slow "folding" action, he
decides to call the new process folding... an obvious name that well describes
the action.
Now comes the question:
Should the Chef (and his
underling as co-inventor) be granted a patent on "folding ingredients"?
The
reasonable answer appears to be yes:
In order to help the chef be willing to
share his new cooking secret with Society, he's granted a limited monopoly on
that physical process!
It does very well appear to be a viable candidate
for the "process" part of basic 101 patent eligibility!
The process of
"folding ingredients" was previously unknown - so it passes basic 101 patent
eligibility. And because the particular process/technique was not known before,
it passes the obviousness and prior art tests.
The process of "making
flap jacks using folding" would also pass basic 101 patent eligibility but fail
the obviousness and prior art tests.
I think I've finally worked through
an understanding with regards how a process can pass basic 101 patent
eligibility. As a result, I'd say the rule for processes should be:
A
physical process (one that includes physical activities - one that can not be
completed with the human mind) passes basic 101 patent
eligibility.
Previously I said I didn't have position on Diehr with regards
the whole process even though I spoke to the software part. Now I have a
position - rather then "no answer" - subject to change with reasonable logical
discussion of course:
Yes1 - the process in Diehr qualifies for
basic 101 patent eligibility as that process includes physical
activities.
On the other hand - what I just did - does not qualify for
basic 101 patent eligibility.
I reasoned with myself in a thought process
- I came up with an answer to an abstract question that utilized abstract
concepts in order to understand a situation better and how that situation should
reasonably be applied to the physical. While this produced a better
understanding, a higher level of knowledge, it did not require a physical act
nor did it produce a physical end-result. My sharing of that thought process
required a physical act in the form of "authoring" with the end result being an
"expression solidified in fixed form".
While "authoring" - if not
previously known, and we've been doing this since our drawings from a time we
lived in caves - could pass basic 101 patent eligibility, the fixed expression
does not. The express is, however, covered under Copyright
Law.
1: Obviously the process in Diehr could (or perhaps
should) still potentially fail due to prior art and obviousness tests.
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