I’m moving this up to the top because Greg DeLaxxus has been hitting the patent crack pipe really really hard lately and RG did a great job of shining the spotlight on the smoking crater that used to Greg’s brain (it was never that large to begin with but it sure in heck hasn’t grown):

Greg: I know that you think that you have hit upon a really wicked reductio ad absurdum, but as I have already explained at least a dozen times now, I just do not concede that there is an aburdity here.

I know, but the fact that you don’t concede it doesn’t make it any less absurd, which is the point of repeating the attack every time you repeat your arguments about the eligibility of diagnostic tests. Other readers should see that your logic inherently must accept this outcome. Just as it must accept the “reporting of a previously unknown fact is eligible for patenting despite immediately promulgating the first amendment” argument.

Nevertheless, the copyright statutes stand as a limitation on what I can do with MY laserprinter and MY CD ROM drive, and none of us blinks an eye at that limitation on private property, because we (as a society) consider the (fairly minimal) burden on private property rights to be worth the wealth of creativity that it buys us.

Incorrect. The copyright statutes stand as a limitation on *generating further* versions or copies of things that 1) someone else made and 2) you purchased from them. None of which (generation, other creation, derivation) applies in an abstraction or law of nature context. My printer combined with your story *uses* your story. My rig combined with my oil doesn’t *use* anything of yours, as you don’t own the location either.

Regardless, a printer has a use outside of printing copyrighted works. Oil does not have use outside of the ability to get it out of the ground. A copyright on a work is not a taking of my printer. A claim covering drilling for my oil is a taking of my oil. Congress lacks the ability to perform an uncompensated taking of my oil.

[MM: Also, Greg, I look forward to the inevitable ‘fair use’ exception to patent infringement on the dark day when your beloved patents on correlations (oh wait — “only” medical correlations, according to Greg! — become a reality … LOL]

Greg: It is an unavoidable truth that intellectual property stands as a (small and easily borne) limitation on rights of real property and tangible personal property.

Spoken like someone who isn’t sitting on oil that someone else stole from them.

[MM: “Spoken like a giant g@ ping @-h0le patentee or patentee’s attorney” is more like it, if you ask me]

Your counterargument here is not really an argument against patents on diagnostic medical devices, but against patents (and copyrights) tout court.

That’s a conclusory statement. You assume that congress was given a power of the scope you (not the supreme court mind you, as this article and the CAFC expressly point out, but *you*) desire, and then assert that by challenging that power I have challenged all of patent law. I have no problem with most patents. I do, however, hold the viewpoint which is entirely unsurprising to everyone but the patent bar: That Congress’ patent power is not all-encompassing. Congress simply cannot do whatever it wishes so long as an aim is to advance a science.

I do think that Congress was not granted the power to monopolize anything in any context it seems fit. If so, why call it a patent power? If so, why bother with a commerce clause? Under your view, congress can (and has) make any useful disclosure eligible for patenting. Under your view, since Congress could design any scheme it wanted, the 102/103/112 limitations are merely discretionary. Under your view, congress was granted the police power, and they have only benevolently chosen not to run roughshod over the states and our freedoms.

Reporting of a natural law is not distinguishable from reporting of any other fact. Athena did not invent the natural law, it simply disclosed what was already there. Reporting is simply not invention, and therefore places it outside of the patent power. The fact that the reporting was difficult to come by doesn’t make it inventive, as Woodward and Bernstein were not inventors. The fact that it can be used by an art does not make it inventive, as virtually every dissemination of information can be used in an art in some way. You confuse “invention” with “publication.”

Congress has ample means to encourage publication of fact, but the full sweep of the patent monopoly is not one of them. The fact is unpatentable, and the diagnosis once the fact is known is noninventive. There is no invention. Again, the same would be true of Sequenom or drilling for oil or anything else – Congress could incentivize a fact finding mission, but not through a claim which has the effect of performing a taking on a private good.

[MM: All Greg did there was to adopt the classic patent maximalist script: “If you don’t like my favorite kind of patent, then you are just anti-patent or anti-technology.” This is the argument of kindergartner who has run up against the wall and is licking the bricks with his tongue. And that’s where Greg and his fellow maximalists are. And that’s where their representatives in Congress are going to be if they pass the law that Greg wants them to pass. And that’s not a good luck. Of course, all bets are off if Greg is in favor of some authoritarian utopia where Greg and his fellow patent lawyers get to pass whatever self-serving pocket-lining laws they want and the rest of us just to have to grovel before them. Only Greg knows the truth about that. As I’ve said before, life is about choices. Increasingly people (like Greg, and like Dennis) are making some incredible sh–ty ones. But who knows what kind of pressure they are under? It’s really, really tough being a white guy in the US these days, or so I am told by white guys on the Internet.]