The origin of the idea that natural phenomena, like the law of gravity, cannot be patented, even by their discoverer, is well-settled law. In Gottschalk v. Benson, the Supreme Court stated, in dictum: “Phenomena of nature, though just discovered, mental processes and abstract intellectual concepts are not patentable, as they are the basic tools of scientific and technological work.” The Court went on to quote from Funk Bros.: “He who discovers a hitherto unknown phenomenon of nature has not claim to a monopoly of it which the law recognizes. If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” The Court concluded that, in Funk Bros., “we dealt with a ‘product’ claim while the present case deals with a ‘process’. But the think the same principle applies.”

In the legal eyes of the Federal Circuit, discovery of a natural correlation, such that the presence of autoantibodies to MuSK in a patient’s blood can be correlated to a diagnosis of MG, a neurological condition, encompasses the recognition by the researcher that an assay to detect these autoantibodies would be likely to be indicative of MG, if the “newly discovered” autoantibodies could be detected and if the detection using any available techniques, such as ELISA, yielded an accurate diagnosis. (This is beginning to feel like the hindsight reconstruction of the claimed diagnostic test that would be prohibited in an obviousness analysis.) But not all natural correlations are useful, e.g., can be turned into useful diagnostic procedures using conventional analytical and statistical tools.

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