| Of these two doctrines, obviousness is the least likely to be disruptive to the patentability of molecular compounds. Although it could be argued that the combination of trivial enablement and computationally accessible discrete structures make nearly any chemical compound "obvious ... to a person having ordinary skill in the art to which said subject matter pertains," and therefore unpatentable, it is unlikely, given the history and economic importance of these patents, that either the Patent Office or the Federal Courts would accept such arguments.
The doctrine of novelty is likely to affect the patentability of chemical compounds in a far more profound manner. Under the novelty rules, a patent may be invalidated by published prior art that both describes and enables the claims of the patent. In the field of chemistry, the creation of invalidating prior art has historically been expensive; the synthesis of a novel chemical compound is research intensive, and the cost to physically publish the information is non-trivial.
Historically, we may look at this expense as having two important effects. First, it sets the cost of generating invalidating prior art close to the cost of doing the research necessary to actually file a patent. Although filing a patent requires additional research into the usefulness of the compound, this is unlikely to cost orders of magnitude more than the research necessary for synthesis. Second, it has made the actual cost of filing the patent, while non-trivial, cheaper in relation to the amounts of capital spent on research and development. These ratios encourage the development of patents, as opposed to the generation of public prior art; both ratios decrease the marginal cost of applying for a patent over simply publishing information into the public domain.
With the trivialization of the enablement step and the advent of near-zero-cost publishing on the internet, both these ratios shift substantially. A public internet wiki with computationally inexpensive algorithms for permuting and enabling molecular structures drops the cost of publishing invalidating prior art to nearly nothing. Although a pharmaceutical company may
The identification of interesting compounds, however the
, has been nearly For the purposes of this essay, this historical expense is interesting because of two ratios. The first ratio describes the cost of developing and publishing invalidating prior art versus doing the research necessary to actually file a patent. Historically, these costs have generally been of similar magnitudes; although a patent requires additional research into the usefulness of the compound, any demonstrated use will suffice to fulfill th
is the With computationally cheap methods of generating descriptions
Once techniques for systematically fabricating chemical compounds enter the scientific mainstream, the enablement of any sufficiently well described molecule becomes trivial (or at least may be rendered trivial by the development of a computer algorithm capable of generating enablement steps from chemical diagrams). Once this point is reached, any novel compound could be placed in the public domain simply through public online publication of its chemical structure and build routine; an extensive database of permutations of chemical forms would provide a legal basis on which to invalidate new compound patents.
Other forms of Patent Protection
A database of structures and build routines would have the effect of placing many future compound patents into the public domain. Instructions enabling the individual construction of organic molecules could also be argued to invalidate future “purification” patents on molecules within the database; enabling the construction of an individual molecule would have the effect of enabling (very small-scale) production of purified forms of the compound, and would prevent corporations from later claiming that they had newly purified extant substances.
The type of enablement database described in this essay would have no effect on two alternative forms of patent protection: the use patent, and the production patent. The use patent provides exclusive rights over a particular use of a compound, regardless of the legal ownership status of the compound itself. Although use rights are far more limited and difficult to enforce than patents on the compound itself, there is nothing fundamental to the nature of the database itself that would prevent this type of patent.
The enablement database would likewise have no effect on production patents – methods of synthesizing or otherwise producing the molecule. Although the particular production steps in the atomic level build routine would be in the public domain, commercially viable methods of manufacturing the molecule would be available for patent protection.
Neither of these alternate forms of patent protection would be diminished or eliminated by the existence of a public enablement database; however, a public commons could easily be created within a public internet database, simply by adding wiki-like features to the site itself. By providing a place for the posting and discussion of information surrounding
Technical and Legal Issues to be Overcome
Many permutations of chemical compounds – could we have in a database, or would an algorithm suffice – mixed so that requesting a molecule would create a permanent entry in a database.
Corporations forming their own databases to gain rights (the one case that does not require uses), BUT look at statutory bars and diligence.
Alternately, this may allow purification patenting by corporations, and the fact that the use requirement is set so low may lead to a rush of corporate patents before compounds enter the public domain. They would be potentially be able to patent more stuff, but it would be the final rush – 21 years, and all such compounds would be in the public domain. |