Once a decision on patents has been levied, it is the prerogative of the USPTO to translate the court decisions into administrable tasks for the examiner corps. In this article, it states that the difficult decision for the examiner corps is determining the guidelines on products of nature, laws of nature, and natural phenomena. Essentially the article makes the distinction that has come about because there has been scrutiny over claims and whether they properly or improperly encompass the products of nature, laws of nature, and natural phenomena. According to the USPTO, if a claim "reflects a significant difference from what exists in nature" then it is eligible to be a patent. Conversely, if a claim "is effectively drawn to something that is naturally occurring", it isn't patent eligible. To me the difference seems quite muddled and therefore very subjective, thus leading to interpretations that could vary given ones knowledge, technical expertise, or knowledge of laws.
From: http://patentlyo.com/patent/2014/03/eligibility-guidelines-phenomena.html
I made a similar comment on another blog post, but I think that every generation, the term "natural phenomena" needs to be slightly redefined. What was considered "natural phenomena" in the 1800s is very different than now. This is because natural phenomena continue to be discovered. For example, now individual human genes cannot be patented, but synthetic combinations can be. This is something that I can see changing in the near future.
ReplyDeleteIt seems like every patentable guideline is ambiguous, fuzzy, or subjective! You would think that laws of nature would be straightforward with no wiggle room, but somehow everything toes the line. In a way this is probably because as humans, we are part of nature. Everything we create or invent is to make our lives in nature easier. Therefore, these innovations often deal with nature and our understanding of it. I'm not sure if this article touches on any specific examples of potential natural phenomena being patented, but I would like to hear about a case where someone tries to patent an invention but it's ruled unpatentable because it's not technically "man-made". As Roshan points out above with the genes, what is really man-made anymore? I mean, if someone invents a gravity machine to simulate gravity, is that the same as creating synthetic genes that are copies of real human genes? I think it's different, but there is really no analogy for all these cases and therefore no guidelines to help us out.
ReplyDeleteAs advances in technology and science compound on each other, the scope of our discoveries will increase to encompass much more than what IP laws currently account for. It's interesting to consider the laws of nature, since it's an issue that we've already breached in the IP world. If, as Amy said, we create gravity machines, IP laws must be advanced enough to handle that kind of innovation. The problem is if advances in technology and science outpace IP laws. At that point, ambiguity will take over.
ReplyDeleteBouncing off of the discussion topic that Luke is generating, I do believe that it is very clear that the technology and science space will outpace the IP laws. The point is to be proactive in mitigating this issue rather than reactive. The specific issue we are looking at is defining "natural phenomenon." I believe that in order to prevent the outpace, the defining guideline should create a cycle that builds upon landmark advancements. The USPTO needs to establish these checkpoints to establish more black and white
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