Free Oral Argument by Kim Stanley Robinson Page A

they suspected that the idea itself would be patentable. The law there is ambiguous, I think that can be said. You might have judged their idea a business method only, you’ve done that before. An idea for a dating service, a new way to teach a class, a new way to replenish your energy—they’re the same, right? They’re ideas, and you can’t patent an idea, as you ruled in Bilski and elsewhere.
    Yes, there were some physical parts in this case, but the parts in question were all open source. If you type out your idea on a computer, that doesn’t make it patentable just because a computer was involved, isn’t that how you put it in Bilski?
    Quoting precedent is not usually characterized as sarcasm, Your Honor. The patent law is broadly written, and your decisions concerning it haven’t helped to narrow or clarify it. Some people call that body of precedent kind of ad hoc-ish and confusing, not to say small-minded. Whatever keeps business going best seems to be the main principle, but the situation is tricky. It’s like you’ve been playing Twister and by now you’ve tied yourselves into all kinds of contortions. Cirque du Soleil may come knocking any day now—
    Sorry. Anyway the patent situation wasn’t a problem for my erstwhile clients, because they didn’t want a patent. At that point they were focused on the problem so many new biotechnologies encounter, which is how to get the new product safely into human bodies. It couldn’t be ingested or injected into the bloodstream, because it had to end up near the skin to do its work. And it couldn’t trigger the immune system—
    Yes, in retrospect the solution looks perfectly obvious, even to you, as you put it so aptly. The people I am speaking for contacted a leading firm in the dermapigmentation industry. Yes, tattooing. That methodology introduces liquids to precisely the layer of dermis best suited for the optimal functioning of the new product. And once introduced, the stuff stays there, as is well known. But my putative clients found that the modern tattoo needle systems adequate to their requirements were all patent protected. So they entered negotiations with the company that owned the patent entitled “Tattoo Needle Tip Equipped with Capillary Ink Reservoir, Tattoo Tube Having Handle and Said Tattoo Needle Tip, and Assembly of Said Tattoo Needle Tip and Tattoo Needle.”
    This device was modified by the parties involved to inject my future clients’ chloroplast-fibroblasts into human skin, in the manner of an ordinary tattoo. When experiments showed the product worked in vivo, the two groups formed an LLC called SunSkin, and applied for a new patent for the modified needle and ink. This patent was granted.
    I don’t know if the patent office consulted the FDA.
    No, it’s not right to say the nature of the tattoo ink was obscured in the application. Every biobrick was identified by its label, as the records show.
    Yes, most of the tattoos are green. Although chlorophyll is not always green. It can be red, or even black. But usually it’s green, as you have observed.
    No wait, excuse me for interrupting, there were no deaths. That was the hair follicle group. Thermoencephalitis, yes. It was a bad idea.
    No, I’m not saying that no one with SunSkin tattoos ever died. I’m saying that no deaths suffered by those customers was proved to be caused by the tattoos. I refer you to that entire body of criminal and civil law.
    Of course some of them did in fact die. No one ever claimed photosynthesis would make you immortal.
    I do not speak for SunSkin, which in any case went bankrupt in the first year of the crash. My association is with my potential clients only.
    After the crash, my ostensible clients formed a 501(c)(3) called End Hunger. They renounced the patent on their product, and indeed sued to have the patent revoked as improperly granted, the product being made entirely of