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|Top of Notices (125) December 27, 2011||US PATENT AND TRADEMARK OFFICE||Print This Notice 1373 CNOG 503|
|General Information||Referenced Items (101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125)|
(125) Animals - Patentability A decision by the Board of Patent Appeals and Interferences in Ex parte Allen, USPQ (Bd. App. & Int. April 3, 1987), held that claimed polyploid oysters are nonnaturally occurring manufactures or compositions of matter within the meaning of 35 U.S.C. 101. The Board relied upon the opinion of the Supreme Court in Diamond v. Chakrabarty, 447 U.S. 303, 206 USPQ 193 (1980) as it had done in Ex parte Hibberd, 227 USPQ 443 (Bd. App. & Int., 1985), as controlling authority that Congress intended statutory subject matter to "include anything under the sun that is made by man." The Patent and Trademark Office now considers nonnaturally occurring non-human multicellular living organisms, including animals, to be patentable subject matter within the scope of 35 U.S.C. 101. The Board's decision does not affect the principle and practice that products found in nature will not be considered to be patentable subject matter under 35 U.S.C. 101 and/or 102. An article of manufacture or composition of matter occurring in nature will not be considered patentable unless given a new form, quality, properties or combination not present in the original article existing in nature in accordance with existing law. See e.g. Funk Bros. Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 76 USPQ 280 (1948); American Fruit Growers v. Brogdex, 283 U.S. 1, 8 USPQ 131 (1931); Ex parte Grayson, 51 USPQ 413 (Bd. App. 1941). A claim directed to or including within its scope a human being will not be considered to be patentable subject matter under 35 U.S.C. 101. The grant of a limited, but exclusive property right in a human being is prohibited by the Constitution. Acordingly, it is suggested that any claim directed to a non-plant multicellular organism which would include a human being within its scope include the limitation "non-human" to avoid this ground of rejection. The use of a negative limitation to define the metes and bounds of the claimed subject matter is a permissable form of expression. In re Wakefield, 422 F.2d 897, 164 USPQ 636 (CCPA 1970). Accordingly, the Patent and Trademark Office is now examining claims directed to multicellular living organisms, including animals. To the extent that the claimed subject matter is directed to a non-human "nonnaturally occurring manufacture or composition of matter - a product of human ingenuity" (Diamond v. Chakrabarty), such claims will not be rejected under 35 U.S.C. 101 as being directed to nonstatutory subject matter. April 7, 1987 DONALD J. QUIGG Assistant Secretary and Commissioner of Patents and Trademarks [1077 OG 24]