Why can’t we patent bacteria?

Everywhere I turn, I see job ads for Computer Engineers. Companies are hoping that these individuals will make the iPhone 10 even better than iPhone 9. Yes, the iPhone you just bought three months ago is now obscure thanks to the aforementioned individuals. No, there isn’t actually an iPhone 10…not yet. Give it three more years. Think about this: an Apple computer has to be manufactured by specialists and costs around $1,000 but you have streptococci in your mouth right now, which cost you nothing (except a dental bill if you don’t floss).  Why am I telling you this? “Natural Discovery vs. Inventive Discovery” is essentially the basis as to why we cannot patent bacteria.

In 1948 the Supreme Court of the United States decided the case  Funk Bros. Seed Co. v. Kalo Inoculant Co. The plaintiff in this case patented a mixture of bacteria. He found that many different strains of bacteria could be combined without harming the other bacteria in the mixture. The property discovered was one of “noninhibition.” The court held that the plaintiff’s patent was invalid because it was merely a discovery of the law of nature. Essentially the court concluded that although the plaintiff’s finding was new and useful it was not a discovery or invention because the bacteria did not behave unnaturally.

The Supreme Court reasoned that bacteria are not patentable because they occur freely in nature:

“For patents cannot issue for the discovery of the phenomena of nature. The qualities of these bacteria, like the heat of the sun, electricity, or the qualities of metals, are part of the storehouse of knowledge of all men.  They are manifestations of laws of nature, free to all men and reserved exclusively to none. He who discovers a hitherto unknown phenomenon of nature has no claim to a monopoly of it which the law recognizes.  If there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end.” Funk Bros. Seed Co. v. Kalo Inoculant Co. p 128, 131.

I believe that the Supreme Court’s reasoning is supported by strong public policy. However, is the reasoning inconsistent? Let’s think about penicillin? Is that patentable? Why or why not?



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