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Patentability; Are Some Concepts Contrary to Law Protectable?


In the United States Title 35 of the United States Code U.S.C. governs the intellectual property right to patent an invention.  The right to a patent is actually unique in law as it provides for one of the very limited occasions where the government will impose what is considered in the legal world as a negative right.  A patent actually does not afford an inventor a specific right as much as it operates to restrain the right of another.  In the case of a patent the right that is restrained is the right of all others to sell, manufacture or distribute the patented invention without the approval and often compensation of the holder of the patent.

Some concepts that land on a desk at the United States Patent and Trademark office USPTO for review are undoubtedly of almost an unmeasurable value to society. Some set us ahead by leaps and bounds as a society, or even in just a niche area of business or science. All in all, one common goal is furthered, the invention serves for the greater good of our society in some capacity.  Well, what about those inventions that try our minds and our conscience to uncover the value they might add to individuals, or to society at large? Some concepts pertain to materials and inventions that are inherently dangerous and/or outright illegal.

Under current U.S. patent law, any person who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof, may obtain a patent.”  A patent cannot merely protect an idea, rather the idea must fall into one of the following: 1) A new composition, for example a pharmaceutical drug; 2) A method or process such as a new way to manufacture plaster; 3) A new variety of plant; 4) A manufactured article such as a pen; and 5) A machine, defined as something with moving parts. Falling into one of these categories is merely a first step toward patentability. The idea must also be novel, and not obvious. 

More importantly, there is a utility requirement for the invention. The invention must physically accomplish something or it will fail the utility test. This test is where an illegal or highly dangerous concept can be rejected by the USPTO. In contract the patent office gives special priority examination to inventions that counter terrorism, or acts that a violent, dangerous to human life, and those that are a violation of the criminal laws of the United States. It seems that the USPTO is committed to furthering the best interest of the safety of individuals, even at the expense of some patent applications or would be inventors.

In theory, a patent is not a typical right bestowed upon an inventor, remember as we identified earlier it operates as a negative right, barring of others to manufacture, sell or license the protected invention. In the case of illegal products, technically are not all individuals prohibited from manufacturing, selling, licensing or even possessing such a product?  The duty rests upon the USPTO to properly identify dangerous and illegal products and protect the public from them.  For more on this topic refer to the USPTO website for additional information on the process of patent rejection. http://www.uspto.gov/patents/law/exam/101_training_aug2012.pdf

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