Thursday, May 28, 2009

Some basic ontology of ideas, artifacts, and natural kinds

in response to some more disagreement to a post at IPwatchdog.

Some subtleties bear discussion surrounding the ACLU/Myriad suit, and the general legal prohibition against owning "ideas." As with many legal confrontations, one of the problems involves the unclear use of terms by the courts. Specifically, while the Supreme Court has prohibited patents over laws of nature before because they would "amount to" owning ideas, this is not the real reason why laws of nature cannot be patented. Well, it is, sort of, but let's evaluate the various things and see why we cannot own laws of nature:

Laws of Nature: these are inherent in nature, thus they are not new or inventive. Thus, I cannot claim a monopoly over the phenomenon that attracts bodies to each other. Nor can I try to own the phenomena that causes 2 multiplied by itself to equal 4. Nor can I own the phenomenon that causes energy to be released from hydrogen molecules when they are fused (the sun has been doing this for a long time), nor can I own the phenomenon that makes human females more prone to cancer when they possess a certain string of genes, nor can I lay claim to that string of genes which has been a product of evolution for eons.

Expressions: Expressions are the products of human minds, they are the ways that ideas are transmitted between people. The ideas might be new, for instance, of a unicorn, a steam engine, a warp drive, a new combination of genes not already occurring in nature, etc.. They may be of old things, like the natural processes of evolution, the laws of relativity or gravitation, or of a string of genes that evolution created.

Artifacts: These are a form of expression, specifically objects that endure -- what we might call continuants.

Other expressions: Occurents, like a dance, a speech (if not recorded), and other expressions of ideas that do not last after the event. They occur over a span of time

So far, the law of intellectual property has only been applied to a particular kind of continuant, specifically only those that express ideas not otherwise found in nature - new ideas. So, an expression of the laws of nature is excluded subject matter, not because it is an idea, but because it is an expression that is not of something new. A scientific theory is a good theory if and only if it bears a good correlation to the laws of nature, such that it accurately predicts experimental results.

Is gravity an ""idea"? Yes, inasmuch as the abstract entity -- the law of gravitation has been working on the universe since the universe began, just as the abstract entities of mathematics have been making 2 + 2 = 4 for billions of years before humans figured out that it wasn't just a good idea, it was the law.

1 comment:

drkoepsell said...

Many thanks to 6istheman at IPWatchdog who posted the following:

# 6istheman May 28th, 2009 5:22 pm

“The underlying notion is that a scientific principle, such as that expressed in respondent’s algorithm, reveals a relationship that has always existed.

“An example of such a discovery [of a scientific principle] was Newton’s formulation of the law of universal gravitation, relating the force of attraction between two bodies, F, to their masses, m and m’, and the square of the distance, d, between their centers, according to the equation F=mm’/d^2. But this relationship always existed — even before Newton announced his celebrated law. Such ‘mere’ recognition of a theretofore existing phenomenon or relationship carries with it no rights to exclude others from its enjoyment. . . . Patentable subject matter must be new (novel), not merely heretofore unknown. There is a very compelling reason for this rule. The reason is founded upon the proposition that, in granting patent rights, the public must not be deprived of any rights that it theretofore freely enjoyed.”

P. Rosenberg, Patent Law Fundamentals, § 4, p. 13 (1975).”

It is true they used 101 to deliver the deathblow, but their rational follows 102/103.