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The Inventor's Mentor

March 2013

Inventions Long Long Ago, Far, Far Away.

My invention is not new but it was invented a very long long time ago and has long been forgotten. I found it in this old 4000 year old Sanskrit manuscript at the library. I believe there is a real need for it. Why can’t I get a patent? Or

My invention is already in use by the fishermen of Mauritius. I saw it when I took a vacation there last summer. So I am not the real inventor. Big deal! This island is so far away, almost at the antipode of the United States. No one here knows about it. Why can’t I patent this idea? Or

Well I went for a long nature hike, and there were these beavers building their dam. And the nice thing about the beaver dam is that it is concave like an arch to support the pressure of the water.  That’s a great idea. Why can’t I patent the idea of a concave dam?

Sounds familiar? These are some of the comments inventors make when they are told that their invention is not patentable. 

Only the Original Inventor can Patent his Idea

Patent law specifies that


Whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefor, subject to the conditions and requirements of this title.(35USC 101)


In the three cases described above, the “inventor” was not the person who actually made the invention. The fact that the invention was in use very far away ( in Mauritius) or a long time ago (4000 years) or in a different language (Sanskrit) is irrelevant.        

Natural Phenomena are not Patentable

Natural phenomena or objects are not patentable either, they are discoverable. For example, one might say that Christopher Columbus discovered America, Albert Einstein discovered Relativity and that James D. Watson and Francis Crick discovered DNA. The idea that Christopher Columbus could have patented America is completely ludicrous – yet the big powers of the day, including England, France, Spain and Portugal, laid vast claims to the Americas. In recent years, “DNA” and gene patents have been common, but arguably, they refer not to the DNA itself but to specific applications using particular sections of DNA – this field is still controversial. For the second time, the US Supreme Court has agreed to hear a lawsuit that challenges the patents on the BRCA1 and BRCA2 genes, which identify a higher risk for breast and some other cancers. The court will attempt to answer an elusive and contentious patent-law question: Can a human gene be patented? Central to the argument is whether isolated DNA is a product of nature, and therefore ineligible for patent protection.


Expired Inventions are not Patentable

Patents have a life of 20 years. Inventions older than 20 years become public domain – any one can use them without paying royalties to the inventor. Recently the price for a 90 day dose of Lipitor (cholesterol lowering drug) dropped from $112 to $12. This price reduction occurred because the 20 year life of the patent had expired and Pfizer, the owner of the patent had to face tough competition from other drug companies.             

Most Life Forms are not be Patentable

Most life forms are not patentable except when it can be shown that they can be reproduce without changing their DNA. These life forms include plants that are reproduced asexually, for example by grafting. Recently Harvard University received a patent 4,736,866 for a “transgenic” breed of mouse (heavily inbred) with a DNA specially engineered to carry a human gene that causes cancer.  This mouse breed will be used to test potential treatment for this terrible disease.


Human Organism are not Patentable

Patent law specifically states that human beings are not patentable. This is wise. Imagine a world where humans would be “bred” with predetermined characteristics and “owned” by other humans.


Pure Ideas are not Patentable        

To be patentable an invention needs to be concrete or   transform material articles such as iron ore, or food ingredient, from one state or thing to another.

Processes such as algorithms transforming bits of information from one format to another in the memory of a general purpose computer are non-patentable. These include, for example, financial or scientific data computation. Processes taking place solely in a human brain (i.e., ideas) are not patentable.  


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This newsletter should not be construed as being legal advice.             ©2013 by George Levy