Puzzling patents
Picking a path through the tangle of patent legislation has become a nightmare for producers
of new products derived from natural features of the jungle, the desert and the oceans, who are
trying their hardest to stop other producers making profits out of the same features.
It is clearly established that the discoverer of a naturally occurring phenomenon such as an
element, a chemical or a mineral cannot protect himself by patenting it. Although a genetically
modified organism may be patentable in some circumstances, a new plant or mineral discovered
in the wild cannot, because to claim patent rights the intervention of human ingenuity has to
be proven.
A commentary published in Science for 30 May discusses some of the complications that
can render a product patentable. The path is by no means clear, since much may depend upon legal
arguments over definitions and terms.
In the United States, prohibition regarding patents for some natural substances has been allowed
to lapse if they are merely isolated and purified without substantial modification. This has
resulted in patent cover for some minerals, extracts and secretions of micro-organisms, vitamins
and viruses, despite the fact that they have not undergone any process of "human ingenuity" worth
talking about. Sometimes conversion of a chemical ester into a salt, or the addition of small
quantities of an impurity, has earned patent rights.
Fundamentally, there should be a prerequisite of the element of "human ingenuity" in the conversion
of a natural product into a utility before patenting is allowed. There is at present no test
that will distinguish between a product of nature and the result of human ingenuity.
In chemistry and the physical sciences the character of a natural substance and the product
must be substantially different for a patent to be allowable. If there are differences, it must
be determined whether they are inherent in the natural product or brought about by the claimant.
The fact that a process may be patented does not guarantee that the final product is patentable.
Remaining factors are utility and novelty. A profusion of patents on products of nature diverts
resource into licence fees and litigation proceedings. Fear of such expenses may deter further
research and so loss of public benefit. Would-be patenters should walk cautiously.
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An interesting observation is made by Andy Meharg of Aberdeen University in Nature for
12 June, regarding William Morris and arsenical poisoning. Morris's father was one of the directors
of the mining company Devon Great Consuls, which in its day was the largest producer of arsenic
in the world. Morris himself used his income from shares in this company to finance his design
company Morris, Marshall, Faulkner & Co, and was also a director of his father's company
from 1871 to 1875, when he became an ardent socialist and abandoned capital interests.
