Marielys Padua Soto-Estudiante de Derecho
We are currently undergoing a national pandemic declared by the World Health Organization (WHO) due to the newly found coronavirus from Wuhan, China. This has raised interesting legal debates in different fields. Employers do not know which labor laws or contract reenactments to apply when laying off employees due to this emergency. Similarly, discrimination and xenophobia issues have risen because president Donald Trump won’t stop referring to the virus as the “Chinese virus” and recently, an unnamed member of Congress referred to it as the “Kung Flu” (Trump Defends Using ‘Chinese Virus’ Label, Ignoring Growing Criticism, et. al Katie Rogers, 2020). However, in what concerns the field of intellectual property law, patent laws differ depending on which country the protection is applied for, since there are divergences in the way each analyzes and enacts the laws on the patentability of biological material. The European Patent Office, for example, considers that biological material which is isolated from its natural environment, or produced by means of a technical process, is patentable even if it previously occurred in nature (The European Patent Convention, Rule 26 to 29). This is not true in the United States.
A patent is a form of intellectual property that gives its owner the legal right to exclude others from making, using, selling and importing an invention for a limited period of years, in exchange for publishing a public disclosure of the invention. In the United States, we abide by Article 1, Section 8, Clause 8 of the Constitution, which states that the Congress shall have power “to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The United States Patent and Trademark Office (USPTO) is the agency in the U.S. Department of Commerce that issues patents to inventors and businesses for their inventions, and trademark registration for product and intellectual property identification. The 35 U.S. Code §101 delineates which inventions are patentable. It states that whoever invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent therefore, subject to the conditions and requirements of the title. For an invention to be eligible for a patent, it should be useful, novel, non-obvious, adequately described, and properly claimed.
The laws of nature, natural phenomena, and abstract ideas are exceptions that are not patentable (Diamond v. Diehr, 450 U.S. 175, 1980). Thus, a new mineral discovered in the earth, or a new species found in the wild is not patentable subject matter. Likewise, Albert Einstein could not have possibly patented his celebrated law of relativity, and neither could have Isaac Newton patented the law of gravity. Such discoveries are “(…) manifestations of…nature, free to all men and reserved exclusively to none” (Parker v. Flook, 437 U.S. 584, 1978).
If SARS-CoV-2 was man made by genetic modification, as some conspiracy theories suggest, it would technically be patentable. A genetically modified virus including a gene sequence that is not present in the wild-type strain of the virus could be patentable in the United States. Also, a vaccine based on a virus whose gene sequence includes a mutation that reduces its virulence could be protected. But because SARS-CoV-2 is seemingly naturally occurring, as many scientists agree, then it is currently not possible to protect it under the patent laws of the United States.
