“Would you patent the Sun?” -Jonas Salk

The statute, “Inventions Patentable,” 35 USC § 101 states that the intent of Congress in enacting the statute is to “promote useful arts by securing for limited times to inventors exclusive right to their discovery.” Furthermore, the Supreme Court stated that the purpose of patent law is to reward individual achievement. 35 U.S.C. § 101, “Purpose.”

The question is whether drawing the line between raw nature, and modified nature promotes the purpose of patent law. The short and sweet answer is yes. It makes perfect sense to only reward inventions that are separate and distinct from what nature itself has created. No one can be credited for what nature creates. He must use what is derived from nature to come upon a new use of such, applying the four-factor test described in Diamond.

Jonas Salk creator of one of the polio vaccines (there were two different kinds) asked “[w]ould you patent the sun?” What does that mean? How does that relate to his own invention? How does that relate to patenting bacteria?

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