Say you read someone’s patent (or patent application) online. It basically lays out how the device or preparation is made.
Is it legal to use these instructions to make the thing for yourself, if you don’t try to sell it to anyone?
You’re still getting utility out of it even if you aren’t retailing it.
Okay, the patent is for a leaf extract. Common, ordinary leaf. Like, say, dandelion leaf. It’s for “blah blah leaf as an active ingredient against such and such a condition.” It then runs down every conceivable way you could use it as an ingredient. It also says, “preparation **consisting of **blah blah leaf extract.” In other words, just the extract alone.
Does that actually mean that I cannot make this leaf extract for myself?
What if I make it for the purpose of “washing my car”? Is that okay?
Maybe I’m missing a nuance of intellectual property law.
In theory, you can’t but in practice, you can as a) the original patent holder has no practical way of detecting the patent violation and b) You don’t have enough assets such that them filing a patent lawsuit against you would be cost effective.
Thanks for the clear answers, guys. I wonder if anyone has patented fennel seed as an active ingredient to settle tummies? Ginger tea for nausea? Parsley to freshen breath?
I mean, it seems a little silly that one can patent and thereby obtain theuretical exclusive rights over something people have been doing for centuries. :rolleyes:
I thought you weren’t allowed to patent inventions that are “obvious”? I’d say preparing an extract of a leaf is pretty obvious, so I don’t see how that could be patented.
You can’t patent obvious or previously documented processes or uses, but that doesn’t mean some schmuck at the patent office didn’t issue the patent. It’s still up to the patent holder to defend it. If you think you can demonstrate prior art, then go ahead and use it.
It’s not always as obvious as you’d think, especially if you’re trying to extract a specific chemical out. Sure, it seems easy enough (boil leaves or whatever, extract with an organic solvent, purify if needed) but it’s that last purification step that can be a killer and all of it can be tricky to reproduce reliably. In addition, just because something can be done in general doesn’t necessarily mean that a specific use or technique can’t be patented. Just because you can get salicylic acid out of willows doesn’t mean that the patent office wouldn’t grant a patent for the technique of extracting and purifying a specific active pharmaceutical ingredient from some other plant source. And the FDA would demand robustness and reliability of your process before they’d ever consider granting approval, no matter how good your drug looked in testing.
Astro’s quote shouldn’t be taken too broadly. Companies can and do duplicate competing company’s patented products all the time for internal review. E.g., they make a copy, figure out what’s good or bad about it, try to figure out a better version, etc. Then file for a patent on their new ideas.
As long as they are not using (or selling) the product for its intended purpose, they’re okay.
And it goes beyond this. E.g., generic drug makers will make test batches, analyze the results, tweak things, get FDA approval, and go into mass production, all while the original is still patented. Once the patent expires, then they start shipping.
I’ve propagated plants in my landscape that when originally purchased had tags saying I couldn’t. I was not intentionally violating the law, but who keeps track of plants?
Parts of this remind me of the recent threads on obeying each and ever law.
[cartoon double-take] What? They say what? You have got to be joking – but I think you’re not. Does anyone else feel that that is even sillier?
I mean, yes, no one’s likely to get prosecuted for having a fancy hybrid plant reproduce in their garden; but it’s just the idea that they could! It’s ridiculous!
As others have said, no you can’t get a patent on something that people have been doing for centuries. But if you apply a process to a material and obtain a result that has never been obtained before and is otherwise has unexpected utility, then you very well might have done something novel, which is eligible for a patent.
On the contrary, it’s very common. Just google up “Roundup Ready” seeds. When you buy Roundup Ready soybean seeds from Monsanto, you sign a contract that states that you are not allowed to save any seeds or replant them beyond a certain date. Monsanto indeed does drive around looking for people who have plants grown for saved seeds beyond the terms of their contract and also looks for people who have plants grown from Monsanto seeds who didn’t buy them from Monsanto.
At one time, and possibly still, (IANAL) according to the law, you need the patent holder’s permission to “practice” the invention regardless of who built it. This applied not just to manufacturers, but to end users as well, so you are not safe if you buy a knock off product, even in good faith.
In one case from the age of the telegraph, the Vibroplex company had a patent on a semi-automatic telegraph key.* There were many knockoffs, and Vibroplex was able to defend their patent against the imitators, AND took action against telegraphers found to be using them. They had a “get legal” program where telegraphers could send in their knock-off key along with a fee, and vibroplex would apply a license sticker to the competitors product.
*Widely known as a “bug” after vibroplex’s “lightning bug” model.
IIRC, you can patent a device or a process; and now software, if it runs a procedure, and life. The USA has had some silly rule about patenting “business processes”, which is meant to protect someting like a business’s wonderful equivalent of the 12-step program.
SO you can’t patent every conceivable method of extracting “X”, but if the process your competitor uses is “substantially similar” to yours, they are violating your patent. If the resultant compound is a non-obvious chemical (IIRC, not a compound already regularly available of found in nature) then you can patent that drug/chemical.
If you use the patent without paying the license, the owner can sue. As mentioned, usually this is irrelevant and not worthwhile for small personal use. But… a farmer that keeps a field full of seeds instead of buying them from Monsanto is probably saving thousands of dollars in licensed seed. Similarly, if your greenhouse business spends a year growing cuttings then goes into competition selling “Queen of Monsanto” roses, obviously you are cutting into their business. Any decent sized business using a patented device or process unlicensed risks being sued.
I have serious questions about patenting life, especially when they are patenting living people’s genetic configuration (i.e. found material, not a process or invention) but Monsanto and the pharma companies apparently have the bigger pockets necessary to influence the necessary quorum of congresscritters.
This. Unless you absolutely duplicate the item you’re making something unique and difficult and pointless to argue in court.
The term is “business methods” and the issue is quite controversial. The Amazon “one-click” patent is a business method patent, as are a lot of internet and software applications.
I once attended a speech at which a speaker said that the first airline frequent flyer program should have been patentable (if that’s what the creator wanted to do).
There are some cases before the courts now that could significantly change the boundaries of what kinds of business methods are patentable. Several Supreme Court justices have expressed grave reservations about the State Street decision, which said that business methods were patentable without any significant restrictions.
“Substantially similar” is a copyright term, not a patent term. There is a “doctrine of equivalents” in patent law that to some extent captures patented ideas that aren’t exactly the same as the patent claims asserted.
Monsanto generally gets patents on life that it has created itself, not that had already existed in the world. Pharma patents are meant to patent novel uses combined with novel combinations and methods. They do spend a lot of money coming up with effective and valuable pharmaceuticals. There are valid questions as to what extent their exclusive rights should extend, but it really isn’t as simple as their having the political power to get rights over things that already exist in the world.
Recently my doctor was complaining about the fact that pharmaceutical companies have drastically cut back on developing new antibiotics because they believe that the investment will not get them sufficient returns. That has a significant impact on our lives and societies. It isn’t easy to find the right balance, but surely there’s more to it than simple polemics.
Do you have authority for this assertion? I will admit that I have not researched it recently, but I don’t think it’s true. Wasn’t there a university case (I want to say Duke, but I’m not sure) a few years ago that addressed this exact issue and found that the university needed to get a license?
I recall an article in the last year or so about some pharma company that was patenting genes that were actually harvested from volunteer patients, or patients that had come under the treatment of a participating doctor.
Similarly, the trick was also mentioned of finding any application, however trivial, to satisfy the requirement that the company not just describe (i.e. a gene) but also point out its use. Once the gene was patented, with any use, it was covered so that any future research that discovered further applications was extra gravy.
To stray briefly into great debates - I do have problems with patenting stuff that reproduces itself. It’s one thing to say you cannot manufacture and sell something patented by someone; it’s another to say that you violate patents if nature takes its normal course. It’s about as silly as the idea of violating copyright if you play your radio where others can hear it in a place of business.