Chapter 4: The Storehouse of Knowledge: Patent Law, Scientific Discoveries and Products of Nature
4. The storehouse of knowledge: patent law, scientiﬁc discoveries and products of nature What if each generation of scientists was forbidden to use – or even think about – the theorems, principles, and natural phenomena that had been discovered or proven by the previous generation of scientists? (Lori Andrews et al., ‘When patents threaten science’)1 Historically, patent examiners, courts and legislatures sought to draw a sharp distinction between inventions, which were patentable, and scientiﬁc discoveries, products of nature, and methods of human treatment, which belonged to the public domain, the ‘storehouse of knowledge’, which could be drawn upon by anyone.2 In 1873, George T. Curtis described the question as ‘how far a discovery or invention which may ﬁrst disclose and practically embody some truth in physics or some law in the operation of the forces of nature, for a useful purpose, is capable of being carried in the exclusive privileges secured by the grant of letters patent’.3 In 1890, treatise-writer William Robinson observed of the basis for the prohibition of natural phenomena: ‘A principle, in this sense, is a necessary factor in every means which produces physical eﬀects, whether such means be natural or artiﬁcial, and it is generally this which makes the chief impression on the senses of the observer; but it is in itself no true invention, nor can it be protected by a patent.’4 In the landmark Telegraph Case, O’Reilly v Morse, the Supreme Court of the United States considered the validity of a...
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