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August 13, 2009



I have very little to quibble with in the BIO brief except for their reference to Funk Bros. Seed Co. v. Kalo Inoculant Co., an awful opinion written by William O. Douglas, and one i criticized extensively in a law revew article I wrote on the patentability of microorganisms (prior to Chakrabarty). Funk Bros. epouses Douglas' narrow-minded anti-patent bias by holding a mixed innoculant unpatentable as trying to claim "one of the ancient secrets of nature now disclosed." As the concurring opinion by Frankfurter correctly observed, that wasn't true. In fact, Breyer's dissent in the Metabolite case looks like the ghost of Douglas reincarnated.

Dear EG:

I was surprised to see that case cited too, at first, and then I thought, since they are using it for its dicta rather than its holding, you could make the argument that even Justice Douglas didn't take as extreme a position as the CAFC did in Bilski.

Or at least I hope that's how the Supreme Court takes it.

Thanks for the comment.

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