Geoscience Reference
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rightly public or communal. On the other hand, patent officials are
expected to uphold the private interests of current patent holders. They
check against existing patents to ensure that a new patent claim rep-
resents a genuinely new invention. In each case, patent officers are
stand-ins for other people as part of their normal professional practice.
Their representational function is framed by the legal-moral concept of
rights: property rights for patent holders and citizen rights for members
of the public.
In terms of the conceptual basis on which patent claims are made,
biotechnology patents by definition rest on the nature-society dual-
ism. In effect, they aim to represent not nature but that which is
demonstrably non-natural .
Conceptual quarantine: keeping nature out of invention
Patents, like all other forms of intellectual property, are predicated on the
idea of a 'creator' or 'author'. Because creators and authors are taken to be
human, patent law also rests on two assumptions: (1) what we call nature
cannot itself be an inventor (or knowingly inventive); and (2) human inven-
tors can only patent 'natural phenomena' if they're not strictly natural any
more (because they display utility, novelty and non-obviousness by virtue
of an inventor's inventiveness). This may seem relatively unproblematic -
indeed necessary. If patent law is to do its job effectively, then it surely has to
draw a line between legitimate 'invention' and the realm of the 'uninvented'
and 'uninventable'. That line, it may further be thought, is no mere artifice
but something real because humans routinely take products of nature and
modify them.
Certainly, several early patent cases in the United States set a clear prece-
dent in this regard. For instance, a ruling by the US Commissioner of
Patents in 1889 ( Ex parte Latimer ) is often said to have codified the 'prod-
uct of nature' doctrine in Western patent law. The Commissioner rejected a
patent claim on wood fibre from the Southern Pine. The fibre had been iso-
lated 'in full lengths from the siliceous, resinous, and pulpy part of the pine
needles and subdivided into long, pliant filaments adapted to be spun and
woven' (cited in Carolan, 2010: 113). In deciding not to grant a patent to
the filing party (Latimer), the Commissioner compared the putative inven-
tion to 'wheat which has been cut by a reaper
...
' (ibid.). The logic here was
that taking a 'slice' of nature does not amount to an invention. Similarly, in
a 1948 ruling on a patent infringement case (involving two agro-foods com-
panies and bacteria that allow nitrogen-fixing in plants), Justice Douglas of
the US Supreme Court argued that:
Patents cannot be issued for the discovery of the phenomena of nature. The
qualities of these bacteria, like the heat of the sun, electricity, or the qualities of
 
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