Chapter Ⅴ　PATENTABLE SUBJECT MATTER

A.Introduction

“Patentable subject matter”refers to the kind of invention that may be patented.The Patent Act never speaks about what specific kind of invention may be patentable subject matter,or what may not,except giving four basic broad categories by the original language of Thomas Jefferson,i.e.,any useful art (later defined as“process”),machine,manufacture,or composition of matter,as well as improvements thereof,according to section 101.The language remained primarily unchanged over two hundred years since Jefferson’s initial draft,and the only significant clarification of these broad categories has been the exceptions imposed by courts,such as abstract ideas,laws of nature,rules of algorithm,and so on,which are judicially understood as the basic tools of science and should remain freely available to all and reserved exclusively to none.

Also not protectible under any law are those that Justice Story termed as“injurious to the well-being,good policy,or sound morals of society,”such as“a new invention to poison people,or to promote debauchery,or to facilitate private assassination.”This is easy to understand.Acts that are against public morals should be discouraged or punished,rather than encouraged or protected,under any laws.

However,life is never that simple.In the following case,the inventor,working at GE,developed a unique bacterium (that does not exist in nature) that probably look very much like chemical powder,and is extremely useful for industrial purposes.Problem is,it’s living.If this life form can be patented,what can be not?Where do we draw the line?