Einstein did not patent his formula

Yesterday's unanimous US Supreme Court decision, Mayo Collaborative Services v. Prometheus Laboratories, Inc., opened:

Section 101 of the Patent Act defines patentable subject matter. It says:

“Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.” 35 U. S. C. §101.

The Court has long held that this provision contains an important implicit exception. “[L]aws of nature, natural phenomena, and abstract ideas” are not patentable. ... Thus, the Court has written that “a new mineral discovered in the earth or a new plant found in the wild is not patentable subject matter. Likewise, Einstein could not patent his celebrated law that E=mc²; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of ... nature, free to all men and reserved exclusively to none.’ ” ...

A patent, for example, could not simply recite a law of nature and then add the instruction “apply the law.” Einstein, we assume, could not have patented his famous law by claiming a process consisting of simply telling linear accelerator operators to refer to the law to determine how much energy an amount of mass has produced (or vice versa). Nor could Archimedes have secured a patent for his famous principle of flotation by claiming a process consisting of simply telling boat builders to refer to that principle in order to determine whether an object will float. ...

That is to say, these clauses tell the relevant audience about the laws while trusting them to use those laws appropriately where they are relevant to their decisionmaking (rather like Einstein telling linear accelerator operators about his basic law and then trusting them to use it where relevant). ...

A patent upon a narrow law of nature may not inhibit future research as seriously as would a patent upon Einstein’s law of relativity, but the creative value of the discovery is also considerably smaller.

This was a big and closely-watched case, and a reversal of the lower (patent) court. I agree with the conclusion in this case, but not the reasoning. As I said in 2006:

It is not so obviously bad if Einstein had been able to patent E=mc².

Suppose it were really true that anyone who thinks of a new formula for generating energy could get a US patent on it, and collect royalties on the energy generated for the next 17 to 20 years. Then Einstein would have had the exclusive rights to nuclear bombs and power plants from 1905 to 1922. Nuclear power didn't even start to become feasible until 1945. What exactly would have been the harm?

Einstein did not foresee the practical utility of his formula, so he would not have been eligible for a patent even if the Metabolite patent is approved. The first one to figure out that the formula could be used in a fission chain reaction to generate energy was Leo Szilard and he did patent it. If the patent system provided him with an incentive to figure out a new energy source, then why is that a bad thing?

I am not saying that I agree with the Metabolite patent claim. I think that it ought to be rejected. But the Einstein analogy is a stupid legal argument.

The formula E=mc² is not even original to Einstein, as I have explained in my book last year, and by others since then.

The Newton example is just as ridiculous. Newton did not discover gravity, as it had been know since ancient times. Robert Hooke had the inverse square law before Newton, and applied it to planets. Newton's famous contribution was to derive Kepler's laws from that inverse square law. So suppose Newton got a patent on that derivation, and got a 17-year patent on it. Exactly how would that be a bad thing? Such a patent would not stop apples from falling, or planets from orbiting.

It may seem tiresome that I am so insistent on getting the Einstein story right, but as you can see, he is used as an example for all sorts of silly things. If so, we should get the history right, so we don't have a unanimous supreme court giving faulty reasoning.