Re: [dvd-discuss] Gedanken Experiment -Unix and Norton

[Jeremy Erwin <jerwin(at)ponymail.com>]

On Monday, July 14, 2003, at 04:58  PM, Michael A Rolenz wrote:

>
> The the chemical formula for Dopamine blocker, Valium, Librium, prozac  
> or lipator is not protected by patent or even copyright since it is a  
> fact. The pharmaceutical patent is not on the formula. It is on the  
> (unlicensed) manufacturing and sale of the chemical. The creation of a  
> new drug is a creative, time consuming and expensive proposition. I  
> will not argue that the drug companies are abusing it. That they are  
> becoming more concerned with marketing than they are creating new  
> classes of useful drugs or concerned with comingup with another "me  
> too" drug of dubious benefit.
>
> The point is that not everything that is created is worthy of a  
> copyright (or patent).  Our "intellectual property" community in  
> pushing for universal protection are in fact debasing their  
> industry.As for the patenting non-obvious things....that's ANOTHER  
> problem with the patent office that should be fixed but is not  
> relevant to the matter here.

You can look up the standard of utility that patent examiners use (or  
should be using) on the uspto website.
http://www.uspto.gov/web/offices/pac/mpep/mpep.htm
The invention must have some utility, although examiners are instructed  
that this is a very low threshold.
An example I found in a handbook on the utility standard:

Note that “throw away” utilities do not meet the tests for a specific  
or substantial utility. For example, using transgenic mice as snake  
food is a utility that is neither specific (all mice could function as  
snake food) nor substantial (using a mouse costing tens of thousands of  
dollars to produce as snake food is not a “real world” context of use).  
Similarly, use of any protein as an animal food supplement or a shampoo  
ingredient are “throw away” utilities that would not pass muster as  
specific or substantial utilities under 35 U.S.C. §101. This analysis  
should, of course, be tempered by
consideration of the context and nature of the invention. For example,  
if a transgenic mouse was generated with the specific provision of an  
enhanced nutrient profile, and disclosed for use as an animal food,  
then the test for specific and substantial asserted utility would be  
considered to be met.

Finally, an example of a utility patent on a chemical (6,569,865)
http://patft.uspto.gov/netacgi/nph- 
Parser?Sect1=PTO2&Sect2=HITOFF&p=1&u=/netahtml/search- 
bool.html&r=1&f=G&l=50&co1=AND&d=ptxt&s1=6,569,865.WKU.&OS=PN/ 
6,569,865&RS=PN/6,569,865

Claim 1 is on the formula. While the exact method of manufacture is  
detailed in reference to a previous patent, it is often sufficient to  
supply a formula, and add the boilerplate "using methods well known in  
the art".

For instance, suppose that a method of halogenizing a certain chemical  
is well known. But astatination of this chemical is rather novel  
(simply because astatine is rather rare). I still have to propose why  
astatination is useful, in order to gain a patent on the formula for  
this new chemical. If I can't, the patent application should be denied.

Jeremy Erwin