On Copyright and Scientific Theory

By Byron, Thomas M. | Santa Clara High Technology Law Journal, September 2017 | Go to article overview

On Copyright and Scientific Theory


Byron, Thomas M., Santa Clara High Technology Law Journal


TABLE OF CONTENTS  INTRODUCTION                                                        2  I.  AN ARGUMENT TO PROTECT SCIENTIFIC THEORY UNDER COPYRIGHT LAW  14 II.  AN ARGUMENT NOT TO PROTECT SCIENTIFIC THEORY UNDER COPYRIGHT  30      LAW CONCLUSION                                                         41 

INTRODUCTION

It is close to black letter law that scientific theory (1)--at least in its sparest form of models, basic hypotheses, and equations--is not eligible for any meaningful intellectual property protection. The point can be made in a brief regime-by-regime review of intellectual property's current domains of protection. Let us begin with patents:

Patent law makes a general distinction between unapplied and applied science, wherein only the latter receives protection. It was in this vein that the Supreme Court interpreted the Patent Act in Diamond v. Chakrabarty, noting that:

[t]he laws of nature, physical phenomena, and abstract ideas have been held not patentable. Thus, 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 = [mc.sup.2]; nor could Newton have patented the law of gravity. Such discoveries are 'manifestations of... nature, free to all men and reserved exclusively to none.' (2) 

If scientific laws and the equations and models simulating them are not patentable, this is because patent law's protections require more than scientific theory's observation and modeling of reality as it (purportedly) is. The Court in Diamond went on to hold that the microorganism at issue in the case was patentable because, unlike the natural laws just mentioned, it reflected "a non-naturally occurring manufacture or composition of matter--a product of human ingenuity." (3) Patentable subjectmatter is inventive, the stuff of an active human intervention to bend phenomena, both natural and man-made, to human use. (4) "Use" is the right term, because one of the requirements for the issuance of a patent is the "utility" of the potentially patentable material. (5) Where automobiles, washers, and computer systems offer certain evident forms of utility that make their subparts potentially patentable, the person attracted to Earth by the planet's gravitational pull can be much less said to be "using" the effect of that law in any meaningful, intentional way. In view of the utility requirement and the Diamond dicta, the scientist receiving a patent must do more than just passively observe and record nature for future theoretical predictions; she must actively tinker with nature to serve the end of non-obvious human utility. (6)

Trademark protection is even more obviously unavailing for the discoverer of a scientific law or theory. As trademark protection is limited to goods and services in commerce, (7) its purview could not conceivably cover a newly-discovered scientific law. Extending trademark protection this far would amount to declaring that "genetics" is a good or service of Mendel, or that "gravity" was brought to the public by Newton. obviously, this is not the case. Neither of these examples is a good or service in commerce; and even if natural laws were somehow commoditized for commercial use, they would not owe their origin to their discoverer or exploiter. The very idea of scientific discovery is that something--e.g., a mechanical relation, a magnetic attraction--pre-dated the discovery and continues to exist in the wake of the discovery. (8) Discovered or not, the scientific relation remains in effect to the same extent. "Relativity" might be proper as a word mark in trademark law, just not as attached to the scientific theory that Einstein proposed.

Copyright is similarly unfavorable to scientific theories, at least in their barest form. Section 102(b) of the Copyright Act clarifies that copyright protection does not "extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. …

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