Re: [asa] Information and knowledge

On Apr 12, 2007, at 7:22 PM, David Opderbeck wrote:

> Let me just dump in a little more background on my interest in
> this: there's an interesting debate in the legal scholarship about
> whether biotechnology patents should be treated differently than
> other chemical patents. Part of this debate revolves around the
> nature of genetic "information." Here's an excerpt from a recent
> paper on this by a leading patent law scholar (Dan L. Burk, The
> Problem of Process in Biotechnology, 43 Hous. L. Rev. 561 (2006)).
> The part I'm quoting is kind of long, so to cut to the chase, Burk
> says at the end of this section: These considerations of molecular
> architecture and information theory allow us to reformulate the
> information patenting argument to account for the recurrent
> peculiarities of biotechnology process patents. Correctly
> articulated, the argument should observe that it is the information
> flow that is of interest in biotechnology, and hence of interest in
> biotechnology patenting.

Key phrase "correctly articulated".

>
> Interestingly, I think Burk recognized where his argument was
> leading in relation to ID theory, even though his paper has nothing
> to do with ID or any such thing, so somewhere he dumped in a
> gratuitous footnote bashing ID.

Or maybe, just maybe, Burk sees what all the rest of us see. This
fails the smell test. Even though the paper has nothing to do with ID
he was interested in it?!??
>
> In my own scholarship on biotechnology patents and intellectual
> property in general, I try to critique some of the epistemological
> assumptions that underly some aspects of approaches like Burk's.
> That's one reason why I focus on the ontology of "information" --
> knowledge and "information," I think, are in many ways socially
> constructed and not person- mind- or medium-independent.
>

When the lawyers evaluate my patents they look at novelty, non-
obviousness, whether we can detect it in competing products and
whether we are actually going to use the process. Here's what the
USPTO says can be patented:

> In the language of the statute, any person who “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,” subject to the conditions and requirements of
> the law. The word “process” is defined by law as a process, act or
> method, and primarily includes industrial or technical processes.
> The term “machine” used in the statute needs no explanation. The
> term “manufacture” refers to articles that are made, and includes
> all manufactured articles. The term “composition of matter” relates
> to chemical compositions and may include mixtures of ingredients as
> well as new chemical compounds. These classes of subject matter
> taken together include practically everything that is made by man
> and the processes for making the products.
Burk is concerned that informationally-based patents are obvious and
they blur the concept of process. No kidding. Now I have pushed the
envelope and was one the first wave of software patents which
according to Burk has similar problems.
http://www.spi.org/patsur95.htm#GROUP%208

But, if I came to our patent attorney and said I wanted to patent
"information" he'd slap me silly. When we file a software patent we
focus on process and not information. Even though the process was
embodied in a computer program our patent (5,274,568) was concerned
with the "Method of Estimating Logic Cell Delay Time". The same is
true for the seven other software patents I have. This should also be
the case for biotechnology both from a scientific and legal perspective.

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Received on Fri Apr 13 00:15:18 2007