This is the best of our knowledge, a presentation of national productions.
Can knowledge be patented?
A series of court rulings in the past few years have given conflicting answers to that question.
And this is one of the things that courts are struggling with right now in several recent lawsuits.
Is where is that lying between what is nature, what is natural, and what is patentable?
Today on the best of our knowledge we will speak to a patent attorney about some of the most prominent intellectual property patent cases of the last few years, including one that is still not settled.
We will also find out a university that was used as part of the Manhattan Project in the 1940s is radioactive today.
And spend an academic minute finding out what Shakespeare thought about property.
I am Bob Merritt and this is the best of our knowledge.
Okay, I will try to go slow because this is well a little complicated.
Whoever invents or discovers any new and useful process, machine, manufacturer, or composition of matter, or any new and useful improvement thereof may obtain a patent, therefore subject to the conditions and requirements of this title.
That's some of the first patent law ever written in the US and ever since the courts have construed this statement is covering in the words of the US Supreme Court anything under the sun made by man.
Although this language is very encompassing, not everything is patentable. Inventions must be both novel and non-obvious.
In addition, laws of nature, natural phenomena, and abstract ideas are not patentable, but novel applications of laws of nature, natural phenomena, and abstract ideas can be patentable.
The courts have been struggling with just how much application is required to turn an unpatentable natural phenomena or law of nature into a patentable invention.
And a recent US Supreme Court decision involving a company called Prometheus, a company which had a patent on a method of administering drugs, has factored into future patents of this sort, the court, throughout that patent.
In a recent issue of the journal Clinical Chemistry, Jill Palik, legal counsel and a patent attorney at Ohio Technology wrote an opinion piece on the fine lines drawn in the decision reached in the Prometheus case and over similar patent decisions.
We spoke recently and I asked Ms. Palik about the basics of patents and how long they last.
Okay, a patent is a form of intellectual property that protects inventions, but it's an unusual form of intellectual property because it gives you the right to exclude others.
Most people think a patent gives you the right to practice your invention, but other people can have patents on different aspects of your invention.
So just gives you the right to exclude others. So anybody who wants to practice your invention needs a license from you to get it.
US, how long a patent lasts? There was a change of patent term in 1995.
Any patent application that was filed with the US patent office prior to 1995 is good from 17 years from the dated issues.
And there has been a few of those that had issued in the past few years, so there still are some out there with that earlier term which would get them 17 years from the date they issue.
In 1995, they changed the patent rules and they're now more consistent with what the rest of the world does and what the rest of the world does is you get 20 years from your earliest filing date.
So if you filed a patent application in 2000, it would expire in 2020. There are a few exceptions to that which would take a long time to go into that can make your patent term a little bit longer just by a year or two, maybe three.
I've seen a few that have been longer than that but not significantly. Once a patent expires, it is expired. You cannot buy more patent life.
You can't renew that. You cannot renew a patent. Once it's gone, it's gone.
I'd heard like with songs or compositions. You have a copyright and then you could, yeah, that's a different thing.
That is a difference in copyrights are much longer term. Trademarks protect a term that is used in commerce and trademarks can be good as long as you were using it.
Well, let's talk about just what can you patent? Can you patent anything? What types of things are under the patent umbrella?
The definition of patentability is very broad and basically the courts have interpreted the patent statute to include anything under the sun made by man.
But there are some caveats to that. It must be new. It must be useful and it must be non-obvious. You can patent improvements on pre-existing objects but the improvement must be non-obvious from what went before.
And they must be inventions. I often get situations where people have gone traveling abroad, particularly to someplace remote, and they come back and say, hey, I saw this really cool gadget. Can I patent it? I've never seen anything like it in the United States.
And no, they can't patent it. They didn't invent it. That's copying. You must be the inventor or a group of inventors to patent something.
There are a number of things that you cannot patent, however. You cannot patent obvious improvements. You cannot patent things that exist in nature.
If you're out rock-hounding and you find a new rock or mineral that nobody has discovered before, that's a discovery in not invention. You cannot patent that mineral. You didn't make it.
No, if you were to synthesize something in a laboratory that was identical to something that might exist out in nature, you can patent your synthesized version. You might be able to patent the process of making it or a way of extracting that mineral from its natural environment.
But you can't patent that natural item. And this is one of the things that courts are struggling with right now in several recent lawsuits. Is where is that line between what is nature, what is natural, and what is patentable?
And I guess the next question would be what do you have to describe or do to get to patentable subject matter?
A patent consists of several parts. There's usually a set of figures, although some biotech patents don't need any figures and you might not have any.
There's usually figures. There's a description. And there's this set of numbered paragraphs at the end called the claims.
I've seen patents with as few as one claim and as many as several hundred. And the claims describe the boundaries of the invention. And what you need for patentable subject matter is enough information to let somebody of ordinary skill in the art of that invention to make or use the invention.
You don't have to describe every single step in the process if those steps are ordinary and somebody in that field would recognize it. But you have to have enough detail in the patent itself to allow somebody of ordinary skill of the art to practice the claims at the end.
Well, now that the permethious patent has been found to be invalid by the Supreme Court, can anyone practice the methods described for measuring thiopearing metabolites and adjusting thiopearing dosages?
That's an interesting question and the answer is not a yes or no answer. Permethious has lost their patent. The Supreme Court has decided they have very few options left. If a doctor were to perform the steps involved in their methods, permethious could not go after them for patent infringement because the patent has been declared to be invalid.
However, as I said before, patents are negative rights and other people may have patents on various other steps in the permethious process or may have patents on steps that a specific doctor might use in performing the basic invention.
And I haven't done the research on that. I don't know what patents are out there. So I can't say with any certain keys that yes, you can practice this invention. What I can say is yes, you can practice this invention with respect to these permethious patents.
Well, here's the big one now. Can you patent a DNA sequence?
Currently, yes, you can. And this relates to another lawsuit that is working its way through the court. And that's the myriad genetics case. Myriad has a number of patents on genes relating to the BRCA1 and BRCA2 genes. These are the breast cancer and ovarian cancer genes.
And the patents have been challenged in court. And initially some of the claims were found to be invalid by the Federal District Court. That's the trial court. Myriad challenged that ruling to the Federal Circuits. And the Federal Circuits found that DNA sequences isolated or purified DNA sequences are patentable subject matter.
So currently, yes, DNA sequences are patentable. However, the permethious case was decided in March of 2012. And a few days after the Supreme Court handed down their decision in the permethious case, they asked the Federal Circuit the Court of Appeals for patents to reconsider their decision in light of the Supreme Court's decision in permethious.
So that case has now gone back to the Court of Appeals. And will however it's decided likely be appealed to the Supreme Court. We'll see if the Supreme Court takes it and what they do with it. So, like I said, currently the answer is yes, but that may change.
So if the Supreme Court ultimately finds that myriad patents are invalid, then are all DNA patents invalid?
No, I don't think so. Certainly the ruling would apply to myriad patents and any patents that are similar to myriad. The myriad claims that issue, there are several different types, but I'm going to talk specifically about the isolated DNA claims.
There are many patents that exist that are similar to that, but there are many other patents that are formulated in different ways. For example, many patents claim kits for testing the specific DNA sequences.
And those kits may contain some isolated DNA. They usually contain an enzyme such as tectolimaries, which is a bacterial enzyme, and then some other components for amplifying the DNA to test it.
That kit itself with that combination of perhaps human or other species DNA with the bacterial enzyme does not exist in nature.
And while I do not sit on the Supreme Court and don't know how the Supreme Court would ultimately decide, a negative finding for myriad, a finding that their patents are invalid, would not necessarily affect this type of kit claim or any other type of patent that has subject matter where you have different products from perhaps different species or synthetic and some naturally occurring products.
Those patents, in my opinion, would be valid even if a myriad had a negative finding.
They wouldn't be automatically invalid, but might this be used as precedent?
It could be, and certainly there will be people who will try to challenge various types of kit claims, but it would take years to get through the courts.
The myriad case has been going on for a few years. I don't have the dates in front of me, but it started a few years ago.
Many of these cases can take six, eight, ten years before they're completely resolved.
So in the near term, kit claims and various types of method claims that are outside of any potential negative finding for myriad would still be valid for years to come.
Jill Powellick is a legal counsel and patent attorney at Idaho Technology.
Still to come, a university in Chicago was part of the project that produced the atomic bomb.
So is that school still glowing? That's next on the best of our knowledge.
Got any questions or comments about the best of our knowledge? Send them in. Our email address is knowledge at www.wamc.org.
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This is the best of our knowledge. I'm Bob Barrett. The University of Chicago has an important place in nuclear history.
The world's first controlled nuclear chain reaction took place beneath the school in the 1940s, paving the way for the atomic bomb.
However, a curious public radio listener wondered if those experiments left the school radioactive.
In the curious city podcast from WB Easy in Chicago, producer Katie Mingle looked at whether safety was first and foremost as scientists ran the experiment.
Here's the question straight from the guy who asked it.
Hi, my name is Mark Eifert. I'm from Park Ridge, but I live in Germany and I have a question.
The first controlled nuclear reaction took place under University of Chicago's Stagfield, and I'm wondering if that site is still radioactive.
Now, to really unpack this question, it's helpful to know the full backstory, and it's a good story, so let's start back at World War II.
American scientists were running experiments to help win the war, and some of that work was done in Chicago.
To help tell the story, I found a Pulitzer Prize winning historian who wrote the book about this.
I'm Richard Rhodes.
As Rhodes tells it, in 1938, scientists in Nazi Germany had discovered that when they split a uranium atom, that atom would release neutrons.
Those neutrons could go find more uranium atoms displayed, which would release even more neutrons, and you'd have a chain reaction.
Once the discovery was made, it was very quickly clear to scientists that this new, extraordinarily energetic reaction made it possible to build atomic bombs.
Scientists knew that a chain reaction was possible in theory, but they'd never seen one. To get to the bomb, they'd need to experiment.
This would be done in a slightly different way, and you could control it. It would not go boom at once. It would be something you could control.
Which gets us back to 1942 at the University of Chicago, and an Italian physicist named Enrico Fermi.
To demonstrate a chain reaction, Fermi would build a crude reactor. He called it a pile, because that's what it was.
It was a pile of graphite bricks with uranium pellets interspersed. Uranium provided the neutrons, and graphite slowed the reactions.
Now, this is the part where Mark and other people might be wondering about radioactivity. Why run the experiment in the city, and not out in the woods?
Well, they tried, but workers went on strike at that location, so they moved the pile to the next best location, underground on the university campus.
Squashcorts, double squashcorts.
And as Rhodes explains, it wasn't actually that crazy, because they'd already been practicing in the squashcorts with smaller piles.
The final full-scale machine was not starting from scratch. The odds of there being some totally different response out of these materials when they went the final step were very small.
On the other hand, nature is full of surprises.
Rhodes's Fermi's team didn't think there'd be a surprise as in an explosion. A worst-case scenario would have been something along the lines of a meltdown.
Still, it couldn't have been an easy decision for Arthur Compton, who ran the research at the university.
Finally concluded that he could not tell the president of the University of Chicago what they were doing and ask his permission.
In November of 1942, permission or not, Fermi's team started on the final pile. The whole team, even the scientists, helped unload graphite from boxcars.
People got just covered with this graphite. Imagine a big block of pencil lead in your hands. They would go home looking as if they'd been working in a coal mine all day.
They worked in shifts day and night, putting down layers of graphite and plunking in uranium pellets. They were using natural uranium, which isn't very radioactive.
Natural uranium is something that you can handle with your bare hands.
So the pile is growing and taking shape, looking something like...
A doorknob, but it was the size of a two-car garage.
Again, Fermi's team was aiming for criticality. That point at which the pile would build a chain reaction that would continue on its own.
And for safety, they used special neutron-absorbing control rods. To turn the reaction on, they pulled the rods out. To slow things down, they'd push the rods back in.
The scientists spent 17 days building the pile, moving rods around, and Fermi keeps calculating when the pile will go critical.
December 2, 1942, Don, since Chicago, very, very cold morning.
Fermi and his team start to put the final layers of the pile into place, and they're counting the neutrons with counters that work like Geiger counters and click as they register neutrons, whizzing by.
So by close to noon, they're getting a pretty steady clicking sound out of the reactor.
At this point, Fermi, who is a man of great regularity, even though this is going to be the first time in the history of the world, that human beings have built a nuclear reactor.
Fermi says, okay, time to stop for lunch.
And then they come back. It's now 1 o'clock in the afternoon.
And they put the last materials on the top with the control rods pushed all the way in. And then Fermi says, now we're going to remove the control rods, and we should have a divergent chain reaction.
And as they pull out these control rods, the reaction increases. The counter starts flicking, and it clicks faster and faster.
Until finally it's a dull roar. Fermi is watching his other gauges and meters, and he says the reaction is going, we have a chain reaction.
And here, Fermi and the atomic scientists got their proof that they could coax energy out of matter, and they had a path to the bomb and later to nuclear power.
The road tells us that Fermi let the reaction run, like this, for 15 minutes.
It was tense for everyone else, but Fermi was a very confident man.
When it was over, the scientists shared a bottle of kiyanti in paper cups and drank in silence, aware no doubt of the far reaching consequences of their actions that day.
As for Mark's question about radioactivity, the reactor would only have been emitting radiation during those 15 minutes that Fermi let the reaction run on.
The amount of radioactivity was extremely small, but it's faded away long ago.
There really was very little risk, and I must say most of these scientists lived to ripe old ages, despite their exposures to low level of sub-radiation and the course of their work.
Just to be sure though, I went with the University of Chicago's Radiation Safety Officer to a place just above the former site of Fermi's pile.
A memorial is there now, in a library.
We took a reading on a Geiger counter, and sure enough, it read .02mph per hour.
No abnormal radioactivity.
And that report came from Katie Mingle from the Curious City Podcast at WBEEZ in Chicago.
Earlier in the program, we had a discussion about patents and intellectual property, and I know what you were thinking.
What would Shakespeare say?
Well, that's the topic of today's academic minute.
Welcome to the academic minute.
I'm Lynn Pascarella, president of about Hollywood College.
For historical periods lacking in abundance of sources, scholars often rely on literary works to provide insight into everyday life.
Catherine Moss, professor of English at the University of Virginia, looks to William Shakespeare's body of work for early modern ideas about property and ownership.
The 18th century England was a time and place of jarring economic change.
Although England was still an agrarian society, manufacture and trade were increasing rapidly, making cities wealthier and more powerful.
Prices skyrocketed because of the increased demands of a growing population.
At the same time, wages for many laborers declined sharply, producing a starker gap between the rich and the poor.
The first of the English Renaissance were keen observers of these changes, and the great dramatist William Shakespeare was no exception.
In my book, I consider some ways Shakespeare represents problems of wealth, poverty and the right use of property.
For instance, the tragedy richer the second, based on English history, concerns a king who is deposed after he infringes upon the property rights of his subjects.
This play and its sequels, the Henry IV plays, consider how property rights sustain the power of the king, but at the same time limit his power over his subjects.
The Henry IV plays also concern themselves with the different political significance of landed property on the one hand, and chattel or movable property on the other.
Whereas the history plays raise questions about the intersection of property rights and political power, Shakespeare's comedy The Merchant of Venice considers property from a domestic viewpoint.
The Merchant of Venice focuses upon the different property obligations a person has to spouses, offspring, kinfolk, friends and business associates.
Later in his career, Shakespeare revisits similar questions in his tragedy, King Lear.
This tragedy considers what it means to bequeath an inherent property.
It also asks what, if anything, rich people owe to persons who have nothing.
In the 21st century, our political systems and material circumstances seem very different. Yet many of these questions still resonate for us today.
That was Katherine Moss at the University of Virginia.
Production support for the Academic Minute comes from Newman's Own Foundation in partnership with Mount Holyoke College.
That's all the time we have for this week's program. If you'd like to listen again, join us online at our flagship stations website.
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Our email address is knowledge at wwwamc.org.
I'm Bob Barrett. Be sure to join us next time for another edition of The Best of Our Knowledge.
Bob Barrett is producer of The Best of Our Knowledge. Dr. Alan Shartock is executive producer.
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