On 6/12/97, Denis Borges Barbosa <denisbarbosa[_at_]BBS.unikey.com.br> wrote:
>
> My problem, under a comparative law analisys, is with plant patents.
> I think very adequate your contention that, by stressing the utility
> factor of the patent analisys, the "discovery" issue is sidestepped.
> However, a plant is not easily listed under the four items (except,
> perhaps, "composition of matter...").
U.S. law is perhaps confusing on this issue, but we need to make clear a difference between Plant Patents and utility patents -- the discussion of statutory subject matter categories apply to utility patents rather than to Plant Patents.
Having said that, it *is* possible to get a utility patent on recombinant plants, in which case they are in fact considered compositions of matter, just as you intuited.
> The very recent Brazilian Breeder's Protection Act, about which I am
> writing now an article, considers that a plant is provided of
> novelty in case it is not sold in commerce before a certain term.
> But it does not say that a plant should be created or found.
The United States also provides a third type of intellectual property protection for sexually reproducing plants under the Plant Variety Protection Act. This is not a type of patent, and is entirely divorced from the patent requirements discussed above.
> In my understanding, our Constitution (the IP provision of which I
> did write as former Attorney General of the Brazilian PTO) mandates
> that exclusivity goes to creations, not to findings. If I could find
> some comparative law reasoning for such an idea, it would be very
> importnat for my ongoing research.
In the U.S., a number of cases have recognized that "finding" quickly shades into "creation" -- by extracting or isolating something "found" in the state of nature, human intervention "creates" something that did *not* exist in the state of nature.
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