Patents were originally created in a world in which the only patentable objects would be tools (I’m leaving aside processes for the purpose of this post). Tools are, quite simply, machines, without brains or life, and utterly dependent on man for their creation. If the tool was not dependent on man for its creation, it was not patentable, because at that point it becomes a naturally occurring phenomena like a crystal formation.
Modern patent law, however, holds that anything man-made may be patented (within the limits set out by Diamond v. Chakrabarty, including biological organisms. Biological organisms hold are different in a key way from the simple tools that were originally intended to be patented: they are by definition alive.
What it means for these biological organisms to be alive is, primarily, that they can reproduce. Because they can reproduce, however, their existence is not indicative of an attempt to create, and therefore not grounds for patent-related lawsuits. Take the OncoMouse, for example. Assume that I’m the patent holder and am trying to regulate this product that I own. I sell two mice to a buyer, and those two mice do what it is that mice do and my buyer ends up having 10 Oncomice. Obviously, someone here has violated my patent by creating unauthorized copies of my “invention”, but who? The buyer did not, through his own actions, create new mice. It seems the only one to blame would be the mouse itself. And what do we do to mice that break the law?
This is obviously an insane tactic, however. We do not grant biological organisms other than humans rights and do not punish them accordingly. If, however, the limitations a patent imposes on others to recreate the invention can be violated by the invention itself, the patent ceases to have any relevant meaning. Once any loss of control over the invention on the part of the owner can lead to an ever increasing number of the invention being out in the world, there is no reason to believe that they owner can have rights over the organisms that are created through their own means. It still stands that if someone were to seek out and try to recreate the organism, that may violate patent law, but who would do that if they knew they could simply let nature take its course and bring them a fresh new organism?
Earlier I mentioned that, if a tool were to not be dependent on man for its creation, it should be viewed as an unpatentable naturally occurring phenomenon. However, once the initial biological organism is created, subsequent ones fall into the category of non-man-dependent. From this, it only stands to reason that the newly formed organisms are not subject to patentability, and therefore serve as a way around any patent law that may be attempted to be applied to the situation.
The process to create the Oncomouse notwithstanding, the mouse itself is not a patentable entity. Unless the scientists who created the Oncomouse also made it so that it could not reproduce, the mice will do what mice will do, and the being enters the realm of the natural. And nature has its own inevitable course to follow…
Yale Law Tech 