852
NEWS
lit in the Field Research Department of the Magnolia Petroleum Co., Dallas, Tex.
EDITION
Attempt to Patent Bacteria Fails Albert I. Kegan
Albert F. Guiteras, previously with the Department of Health of the City of New York and the United States De partment of Agriculture, Food and Drug Administration, joined the staff of Foster D. Sneli. Inc., 305 Washington St., Brooklyn, N. Y., October 1. Bail A. Gulbransen, formerly instructor in chemistry at Tufts College, Medford, Mass., has accepted a position as re search engineer in the Chemical and Metallurgical Division of the Westinghouse laboratories in East Pittsburgh, Penna. Philip L. Harris resigned from the faculty of the Medical College of South Caro lina September 1, and is now in charge of the Biological Laboratory of Distilla tion Products, Inc., Rochester, Ν. Υ. George R. Hill, formerly employed in the rubber department of the research laboratories of the R. T. Vanderbilt Co., East Norwalk, Conn., has accepted the position of chemist at the Lloyd Manufacturing Co., Apponaug, R. I. Ernest L. Mawhinney, personnel director of the Jessop Steel Co., Washington, Penna., has been appointed safety di rector for the company. He is now exe cuting a program to coordinate all safety measures previously in effect and to provide for the safety of the new work ers added to the staff as the result of increased production. W. £. Reamers has been made division manager of sales activities in the Middle West, with offices in Chicago, and R. E. now division manager on the Pacific Coast, is located at San Fran cisco, Calif. Ifillary Robinette, formerly president of the W. H. ft F. Jordan Manufacturing Co., has entered the employ of the Com· mercial Solvents Corp., Terre Haute, Ind., where he will promote the textile specialties recently introduced by the company. Donald 6. Schaffert, previously connected with the Republic Steel Corp., Diebold 8afe and Lock Co., Canton Forge and Axle Co., and the Steel and Tube Divi sion of the Timken Roller Bearing Co., is no* assistant chief chemist at Copperweld Steel Co.'s new plant, Warren, Ohio. Hairy F. Thome has been appointed general sales manager of Kopp Glass, Inc., Swissvale, Penna., and will make his headquarters Λ One East 42nd St., New York, Ν. Υ.
Vol. 18, No. 19
T
77 West Washington St, Chicago, III.
HE question whether a new species of bacteria can be patented has been raised for thefirsttime, and the court of last resort has answered the question in the negative. The trend toward utilisa tion of biochemical means for production of organic chemicals makes this decision of interest to chemists generally. The decision was handed down by the Court of Customs and Patent Appeals in in re Artberçer, U. S. Patents Quarterly, 46, 32 (1940), and affirmed the position taken by the Patent Office. Arsberger had isolated from soil and grown in culture a new species of bacteria which ferments sugar mashes to yield butanol, acetone, and ethanol. He found that this microorganism, which he named CloêUidiummtcekaro - butyl - aedomicum liqutfaciens, reproduces by binary fission. Arsberger filed an application for patent m proper form under provisions of the plant patent statute, and illustrated his specification with drawings disclosing the appearance of the bacteria under the microscope. The Patent Examiner conceded that the invention possessed novelty and utility, but he rejected the single patent claim of the application on the ground that bacteria are not patentable subject matter. Appeals from this rejection were duly prosecuted through the Patent Office, and the matter was brought to +he Court of Customs and Patent Appeals. The cjurt held that the plant provision of the patent law does not permit the patenting of bacteria, first, because it is not certain that bacteria in fact are plants and, second, because the Court was of opinion that Congress bad not intended to extend such protection to bacteria. A careful reading of the opinion leads to the conclusion that the court interpreted the statute correctly and its decision is sound. There is a difference between the questions whether bacteria should be classified as plants and whether they in fact are plants. Authorities agree that bacteria be classified as plants; they do not agree that all bacteria are plants. Disappointment will be felt in some quarters at the court's rejection of an apparent opportunity to extend the range of patentable subject matter to an increasingly important branch of scientific endeavor. Some will feel that the plant patent act of 1030, the purpose of which was to remove the discrimination then existing between plant developers and industrial inventors, has been construed to discriminate between the bacteriologist and other applied scientists. Supporters of the present decision may well point out that the plant patent act gives its monopoly as a reward for making available to society new varieties of plants which might not preserve their characteristics except tor the mtetrentk« ci human
effort to reproduce them by grafting» budding, and the like. In this respect the plant patent provision is like the rest of the patent law, giving rewards only for the application of human effort and ingenuity to the solution of practical problems, and requiring the inventor to control his subject matter and operate upon it. Arsberger did not control the reproduction of his bacteria by any operations upon them. He merely isolated the bacteria and provided them with a suitable environment. They propagate without human intervention. The plant patent statute deliberately refrains from rewarding the plant explorer, even though his discovery be the mult of an expensive, wisely planned, and care-fully executed program of exploration. Arsberger is such an explorer. The species which he claimed may be extremely ancient, although no one had isolated and described it before. A patent gives the patentee the right to exclude others from practicing his invention. A plant patent, during the period of its validity, prevents others from reproducing the patented plant without the permission of the patentee. If Arsberger had been granted a patent, persons rightfully having his species in their possession would be guilty of infringement all the while the bacteria propagated themselves, although the possessor of the bacteria committed no overt act. Such a situation is not contemplated by our patent law. Bacteria, as a result of the decision under discussion here, present a distinct resemblance to molecules under the German patent law. German patents do not grant a monopoly on the substance, but only on the process of synthesising i t Bacteria as such cannot be monopolised in the United States, but a number of valid patents have been granted which claim processes for producing specified substances from particular raw materials by the action of designated varieties of bacteria. Patents have also been granted for cultures comprising designated bacteria in combination with appropriate media therefor, and also for processes for preparing such cultures. An industry which utilises microorganisms can be adequately protected by patents despite «a rs Ar+> bsrysr. In this branch of law, as in others, the degree of protection obtainable depends in no small measure upon resourcefulness utilised in selecting a theory of prosecution, and skill in presenting i t It is gratifying to note that Arsberger need not go unrewarded—U. S. Patent 2,139,108, covering the process of obtaining neutral solvents from sugar mashes through the agency of Clotiridium fffff^firg-friifyf-fifffffftiniwi fioutfflfîpwf has been awarded to him.
