Law in the Internet Society

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TheodoreSmith-FirstPaper 12 - 09 Nov 2008 - Main.TheodoreSmith
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THIS IS A WORK IN PROGRESS

 
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Placing Organic Chemical Compounds in the Public Domain

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Placing Molecular Compounds in the Public Domain

 -- By TheodoreSmith - 18 Oct 2008
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 Legally, the trivialization of the enablement of molecular compounds is likely to cause the most disruption within the patent doctrine of novelty. Under 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.
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<		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 the research necessary to actually file a patent. Second, it makes the cost of filing a patent cheaper relative to the amount of capital spent on research and development. These ratios encourage the development of patents over the generation of public prior art; they decrease the marginal cost of seeking a patent over simply publishing information into the public domain.
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>		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 the research necessary to actually file a patent. Second, it makes the cost of filing a patent cheaper relative to the amount of capital spent on research and development. These ratios have encouraged the development of patents over the generation of public prior art; they have decreased the marginal cost of seeking 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. The invalidating enablement steps and published description that would have taken a chemist years to produce may be generated and published in the US for fractions of a cent by anyone on earth; a bored high school student playing around with chemical structures on such a wiki during class could produce and publish invalidating prior art covering thousands of molecular permutations. Although the brute force publishing of all possible permutations of all feasible molecular structures is likely impossible, and the pharmaceutical companies will likely retain some unexplored patent space in which to work, the balance between between the public and the patentable will have forever changed.

Revision 12r12 - 09 Nov 2008 - 15:40:20 - TheodoreSmith
Revision 11r11 - 09 Nov 2008 - 04:53:26 - TheodoreSmith
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