It looked good in preview.

It looked good in preview.

For example, see the DOJ Amicus Brief in LabCorp v Metabolite:

[...] In sum, the court of appeals held that anyone who thinks about the relationship between elevated total homocysteine and cobalamin or folate deficiency after obtaining the results of a total homocysteine assay infringes the patent claim.

The claim’s breadth is further underscored by the jury’s findings and the relief awarded, which suggest that doctors infringe the patent claim whenever they review the results of total homocysteine assays, regard less of the purpose for which they ordered the assays. The district court instructed the jury that it should find petitioner liable for contributory infringement if, among other things, the total homocysteine assays performed by petitioner were not “capable of substantial noninfringing use.” By finding petitioner liable for contributory infringement, the jury necessarily concluded that no substantial non-infringing uses of the total homocysteine assays had been proven on the trial record.

In so concluding, the jury implicitly rejected peti tioner’s contention that many of the assays did not in fringe because doctors ordered them for purposes other than diagnosing cobalamin or folate deficiency. Petitioner had argued that the assays were used primarily to diagnose other conditions, especially heart disease. Respondents’ witnesses countered that, whatever the motivation for the assay, it would be “malpractice” for a physician not to perform the correlation upon viewing a total homocysteine assay, and that the other conditions associated with elevated total homocysteine are treated with supplements of cobalamin or folate in any event. [...]

(citations omitted)

Also see Justice Breyer’s dissent (joined by Justices Stevens and Souter).

So, roughly, a patent has been granted on a medical doctor’s diagnosis of a patient.

For example, see the DOJ Amicus Brief in LabCorp v Metabolite:

[...] In sum, the court of appeals held that anyone who thinks about the relationship between elevated total homocysteine and cobalamin or folate deficiency after obtaining the results of a total homocysteine assay infringes the patent claim.

The claim’s breadth is further underscored by the jury’s findings and the relief awarded, which suggest that doctors infringe the patent claim whenever they review the results of total homocysteine assays, regard less of the purpose for which they ordered the assays. The district court instructed the jury that it should find petitioner liable for contributory infringement if, among other things, the total homocysteine assays performed by petitioner were not “capable of substantial noninfringing use.” By finding petitioner liable for contributory infringement, the jury necessarily concluded that no substantial non-infringing uses of the total homocysteine assays had been proven on the trial record.

In so concluding, the jury implicitly rejected peti tioner’s contention that many of the assays did not in fringe because doctors ordered them for purposes other than diagnosing cobalamin or folate deficiency. Petitioner had argued that the assays were used primarily to diagnose other conditions, especially heart disease. Respondents’ witnesses countered that, whatever the motivation for the assay, it would be “malpractice” for a physician not to perform the correlation upon viewing a total homocysteine assay, and that the other conditions associated with elevated total homocysteine are treated with supplements of cobalamin or folate in any event. [...]

(citations omitted)

Also see Justice Breyer’s
dissent (joined by Justices Stevens and Souter).

So, roughly, a patent has been granted on a medical doctor’s diagnosis of a patient.

Doesn’t everyone agree that laws of nature, abstract ideas, and mathematical algorithms are not patentable, and that software patents entail more than these items? Is Moglen, or you, claiming that software cannot be an essential part of a patented invention?

Moglen claims that the federal circuit has misread the Supreme Court’s precedents on the patentability of software from the 1970s and early 1980s in a way that removes almost any limit on the scope of patentable subject matter.

So, since State Street, what new subject matters besides business methods and software have inventors been granted patents for? I’m just curious.

The only way the court is likely to go for that [eliminating software patents] is if it is convinced that the consequences of continuing to allow software patents would be even worse. Maybe a few more high-profile patent trolling cases…

Also, various litigation and administrative reforms would probably have to prove ineffective in improving the patent system.