Patents have been in the media quite a bit recently, mainly because there have been some high profile legal cases (in Australia and overseas) which have brought about significant changes to what kinds of inventions can, and can’t, be patented. I’ve been following the media reports, and the legal cases themselves, pretty closely. (I am a patent attorney after all.)
The recent changes to what can be patented are significant, no doubt. There’s also no doubt that many of the recent changes are pretty negative from the point of view of what can be patented. In other words, they mostly mean that things that could potentially have been protected by a patent previously now can’t (or at least it’s become much more difficult). Having said this, the changes mainly only affect inventions in certain biotechnology and computer implemented invention fields. Other areas of technology have been less affected, or not affected at all.
The law in Australia (and in other countries too) actually specifies quite a number of things that can’t be patented. For example, in Australia, human beings and the “biological processes” for generating human beings can’t be patented. Also, there are some kinds of inventions that can be protected in some countries, but not in others. As an example of this, in Australia it is quite permissible to obtain patent protection for a method for the medical treatment of a human patient. However, in Europe (and a number of other countries as well) patents for these kinds of methods are generally not allowed.
One thing that is consistent across most countries, though, is that you are not allowed to obtain patent protection for something that is contrary to law (i.e. illegal). This may seem logical and uncontroversial. However, in reality, it may not always be black and white.
For instance, the Australian Patent Office’s Examination Manual makes it clear that “contrary to law” encompasses anything that would be unlawful under applicable statutes, regulations, ordinances or established case law. However, the Manual also makes it clear that an objection can only be raised on the ground that a claimed invention is illegal where the patent specification discloses an unlawful use for the invention, but no lawful use.
What this means is that, often, the question of whether something is unpatentable on the grounds that it is illegal depends on how the patent specification and the claims are drafted. For example, a claim to “a suicide machine” should definitely be refused on the ground that the invention is contrary to law. Indeed, suicide is a crime (in Australia anyway), and so it seems impossible that there could be any lawful use for “a suicide machine”. However, it is possible that exactly the same invention could instead be described in a patent specification as, say, “a device for administering a pharmaceutical to a patient”. In that case, even if the machine itself is exactly the same (and potentially usable in exactly the same way), nevertheless the invention is described in the patent specification in a manner that could potentially have lawful applications. So, careful (or dare I say clever) drafting often has a role to play.
One real-life example considered by the Australian Patent Office involved a patent application claiming protection for producing chimeric embryos by employing inter-species nuclear transplantation. Basically, it means producing a “hybrid embryo” by taking an animal egg and introducing the nucleus of a human cell into it. Anyway, the point is that this kind of activity was specifically prohibited in Australia by the Prohibition of Human Cloning Act 2002, which made it an offence (punishable by up to 10 years imprisonment) to intentionally create a chimeric embryo or a hybrid embryo like this. So the patent application in this case was refused.
Another example from the UK was the case of a patent application for a safe that was designed to explode in order to kill or injure a burglar. Unsurprisingly, this was refused patent protection on the grounds that use of the invention would be contrary to law.
Actually, a few years ago, there was a proposal in Australia to expand the statutory prohibition on illegal inventions to also exclude from patentability inventions “the commercial exploitation of which would be wholly offensive to a reasonable and informed member of the public”. However, this proposal was made against a backdrop at the time of significant public (and politically influential) opposition to, in particular, patents for isolated gene sequences. However, that particular issue (patentability of isolated gene sequences) was largely put to rest by a subsequent decision of the Australian High Court which essentially ruled against the allowability of patents for isolated gene sequences (and other like inventions). So, basically, the people who had been lobbying for the expanded statutory exclusion got what they wanted as a result of the court case, so impetus to continue pushing for an expanded statutory prohibition on illegal inventions seems to have dissipated.
Is this issue of illegal inventions (and the prohibition on obtaining patents for them) likely to be of much significance in the future? The answer is probably yes. As time passes, the nature of what society considers to be acceptable (i.e. and what is legal versus illegal) is likely to change, and as a result so too will the kind of inventions that can be patented. As an example, one area that is somewhat topical at the moment relates to lawful use of marijuana and cannabis for medicinal purposes. In quite a few countries and jurisdictions around the world, governments are beginning to relax prohibitions on the use (and also the production of) marijuana, so that it can be used for medicinal purposes. That being the case, it seems possible that inventions that might previously have been unpatentable (e.g. methods for producing marijuana or for enhancing the active ingredient content in marijuana) could potentially become patentable.