EXCEPTIONS TO PATENTABLE INVENTIONS: an overview

EXCEPTIONS TO PATENTABLE INVENTIONS

Patent law has to define the types of subject-matter to which it accords protection. In accordance with the provisions of the Act[1], patents are not granted for some inventions such as follows: (EXCEPTIONS TO PATENTABLE INVENTIONS)

 

Section 1(4)(5) provides: patents cannot be validly obtained in respect of (a) plant or animal varieties, or essentially biological processes for the production of plants or animals (other than microbiological process and their products) or (b) inventions the publication or exploitation of which would be contrary to public order or morality (if being understood for the purposes of the paragraph that the exploitation of an invention is not contrary to public order or morality merely because its exploitation is prohibited by the law). principles and discoveries of a scientific nature are not inventions for the purposes of this Act. (EXCEPTIONS TO PATENTABLE INVENTIONS)

 

It should be noted that the protection of plant and animal varieties are emerging areas of patents. Also, traditional knowledge, traditional medicine, and biodiversity are emerging issues in the grant of patent in some jurisdictions. (EXCEPTIONS TO PATENTABLE INVENTIONS)

 

Human and Animal Treatment

 

Apart from a statutory provision, discoveries such as scientific theories and mathematical methods do not qualify for a patent. Similarly, ideas and schemes are not patentable though they may qualify for copyright protection. Methods of diagnosis and treatment of human beings and animals are not patentable but the products for use in such methods are patentable, for example, drugs. It should be noted that the United States of America and Australia hold that the methods of diagnosis and treatment of humans and other animals can also be patented. This may highly restrict treatment since license or authority had to be sought from patentee who may refuse for self-interest. (EXCEPTIONS TO PATENTABLE INVENTIONS)

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EXCEPTIONS TO PATENTABLE INVENTIONS
EXCEPTIONS TO PATENTABLE INVENTIONS

 

In the United States of America, microorganisms isolated from a consortium of microorganisms, modified organisms, processes using such organism are all patentable. For example, in the case of Frank Brothers Seed Co. vs. Kalo Inoculant Co.[2], the United States Supreme Court held that the respondent’s discovery regarding harmlessness of mixing certain strains of certain species of bacteria (Rhizobium) was merely a discovery of their qualities of non-inhibition and not an improvement on their natural functioning and therefore not patentable. Other non-patentable inventions include schemes for performing mental acts, business methods, presentation of information or even playing games. (EXCEPTIONS TO PATENTABLE INVENTIONS)

 

Biological processes are not patentable essentially because it is difficult to grow cells of multicellular organisms[3], for example, humans outside their natural habitat. When grown genes become locked on, cells proliferate wildly and become cancer. This is regarded as immoral and unacceptable to any community even though cancerous cells tend to do better in the artificial environment of laboratory culture. However, it should be noted that microbiology constitutes patentability. In the case of Diamond vs. Chakrabarty[4], the patentee claimed a genetically engineered bacterium capable of degrading oil spills. The US Supreme Court upheld patentability, holding that the microorganism constituted a ‘manufacture’ or a ‘composition of matter’ within the meaning of the Patent Act – a product of human ingenuity having a distinctive name, character, and use.

PATENTABILITY OF INVENTIONS

Public Order or Policy and Morality

 

The Act prohibits patent for an invention which is contrary to public policy or morality. That means that whatever that does not encourage moral standards, the government will not grant patent for it. For example, section 1(4)(b) of the Nigerian Patent and Design Act provides that:

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Patent cannot be validly obtained in respect of: (b) inventions the publication or exploitation of which would be contrary to public order or morality (if being understood for the purposes of the paragraph that the exploitation of an invention is not contrary to public order or morality merely because its exploitation is prohibited by the law. (EXCEPTIONS TO PATENTABLE INVENTIONS)

 

This is to the effect that offensive, immoral or anti-social inventions are generally excluded from the grant of patent. However, in modern society, perhaps a method of production for hard drugs would be an extreme probably. Similarly, public order in this context may mean things that would promote good governance and for the betterment of the masses. Therefore, granting a patent for an invention that promotes good of society is normally encouraged. (EXCEPTIONS TO PATENTABLE INVENTIONS)

[1] Section 1(4) Parents and Designs Act Cap P2, Laws of the Federation of Nigeria, 2004.

[2] 547 U.S.305 (2004

[3] Bhatia, P.G. (2008)Globalization: Legal Perspective, an LL.M Thesis, Faculty of Law, Ahmadu Bello University, p.136.

[4] 447 U.S.303 (1980)

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