Читать книгу Intellectual Property Law for Engineers, Scientists, and Entrepreneurs - Howard B. Rockman - Страница 54

It is important to note that, although the Constitutional mandate uses the word “discoveries,” there is a strong distinction in patent law as to whether patents can be obtained on “inventions” and “discoveries.” An invention, or creation of a work of art or authorship under the copyright law, is a creation by a human being of something new, and something that is not found before, either manmade or in nature. This is the substance of what can be covered under the Intellectual Property Laws. To the contrary, if someone “discovers” something that already exists in nature, or exists because of someone else’s creation, such “discovery” is not rewarded by exclusive rights under the Intellectual Property Laws. It is possible that early use of the term “discovery” referred to inventions or novel things that were novel to a particular country, and, when someone discovered them overseas and then brought them into the realm, they were awarded exclusive rights under the patent laws. However, that provision has been written out of every patent law in the world, and today, universally, a patent can only be granted on something developed by an inventor or inventors. You cannot obtain exclusive rights on something found overseas and then brought into your home country.

This, in my mind, raises interesting issues involving the patenting of genomes and DNA strains, where most of the public is of the understanding that scientists are discovering something that is in all of our bodies. And, therefore, how can someone obtain a patent on something that already exists? The quick answer is that patents today may be granted on new living organisms, such as recombinant DNA, which is modified from its form found in nature. For a more thorough discussion of recombinant DNA patent protection, see Chapter 14.