In one of its final acts of 2013, the Supreme Court granted certiorari in the case of CLS Bank v. Alice, which concerns the patentability of software. By taking the case, the Court returns to a series of questions that were swept aside a few months ago when the Court handed down the Myriad gene patenting case.
A short concurrence in Myriad has received little attention in the press, but its message should ring loudly as the Court returns to the vexing topic of patentable subject matter. In the Myriad concurrence, Justice Antonin Scalia declined to sign onto the sections of the opinion describing molecular biology, essentially on the grounds that he couldn’t possibly say he knew any of it “by information or belief.” Scalia was making an important point, and one that is the subject of my book, The Role of Science in Law (Oxford). I describe it as the allure of science. When faced with difficult decisions, judges all too frequently rely on scientific lines of demarcation or cloak themselves in scientific jargon. In law, we are constantly seduced into believing that science will provide answers to our dilemmas, and we are constantly disappointed.
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