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June 14, 2012

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Dr. Noonan,

In part, you state "and so avoids the risk of determining that 'products of nature' are somehow patent ineligible."

I am somewhat confused and do not want to misinterpret this statement.

Do you mean to imply that products of nature are somehow patent eligible?

Dear Skeptical:

In a word, yes. But of course a word is insufficient in these conversations, so let me clarify.

I agree with Judge Dyk that a leaf from a tree is not patent eligible per se. That is clearly true. But no one ever claims a leaf from a tree per se, so it is also a red herring to use this as an example. What is claimed is usually something that has been isolated and purified from nature, having some property or characteristic that evinces the "hand of man." To illustrate, what is the logical distinction regarding patent eligibility amongst the following:

Isolated chemical compound from crude oil useful as a lubricant

Isolated antibiotic produced by bacteria

Isolated chemical compound from a plant useful as a drug

Isolated protein from an animal useful to cure/ameliorate human disease

Isolated cucumber gene that extends freshness

Isolated Human gene (erythropoietin)

If your view is that there is none then we part company; not only do I think such a conclusion not to be mandated or sanctioned by the Court, I think it impractical: it would foreclose on weak philosophical grounds the benefits of patenting (most importantly, disclosure) for medicinal chemistry and any naturally derived material.

Moreover, it would have the consequence of having a molecule become less patent eligible the closer it came to the naturally occurring molecule (in structure), ignoring the actions of human invention to convert the natural product into a useful pharmaceutical, for example.

And if it is just a matter of artful drafting we fall into the trap identified by Justice Breyer in Mayo.

Just a few thoughts. Thanks for the comment.


Thank you Dr. Noonan.

I disagree with you - but only on semantics.

I think that a product of nature is not patent eligible under any circumstance.

However, I do not think that something that evinces the Hand of Man (and is changed in kind rather than mere degree) should be called a product of nature. Such an item is rightfully a product of man, and is thus patent eligible.

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