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Do Patents Grant the Right to Confiscate?


If you own a patent on a strain of a bacterial species, and you learn that someone has a test tube of that strain, does the patent give you the right to confiscate that test tube?   While the patent gives the right to stop others from making, using, or selling, it does not give the right to stop others from simple possession.  However, if the bacteria are reproducing in the test tube, the patent holder could claim that the holder is “making” the bacteria and therefore may rightfully stop that activity.  Then, if the holder of the test tube places that tube in the freezer, stopping bacterial reproduction, the patent holder’s right may be extinguished.  The result:  patents do not grant the right to stop simple possession of an invention.


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Property Rights Associated with a Patent vs. Tangible (personal) Property


Very few people understand the difference between the property rights associated with a patent and tangible (personal) property.  Patent rights grant the patent owner the right to STOP others from making, using, or selling (and a few other acts like exporting or offering for sale).  Patent rights don’t necessarily grant the patent holder the right to possess the invention.  Personal property rights grants the owner a suite of rights – including the right to exclusive possession.  This distinction can become very important when these two fundamentally different rights apply to the same biological invention.  Let’s take a patented apple variety.  The patent owner has the right to stop others from propagating, growing, selling plants or fruit of that variety.

If the patent owner also possesses the plants (a typical situation – but not always), he or she also has the right to exclusive possession of the plants and their fruits – as well as the right to transfer the right of possession to others. But, if someone else has obtained the plants legally, the patent owner can only stop that person from propagating, growing, and selling – but not simple possession!  The distinctions of these two property types are an important part of an overall property right management strategy.  And, that strategy is critical to any commercialization of a biological invention which has tangible aspects and patent coverage.


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Is there a difference between “invention” and “discovery”?


I was recently asked to provide an opinion on this difference by some in the European seed industry. For many people, the distinction between these two actions is the difference between a technological innovation that can be proprietary (i.e., a patent) and one that is product of nature that should be part of the public domain. So, is there truly a distinction between discovery and invention. Of course, this distinction depends on the definition of these words. Under US patent law, there is no difference between discovery and invention regarding patentability.



The Makings of a Seed


We often shake our heads when we see how high the price is on a single, small technological item, especially when the single item is simple in design or manufacture.  To create modern technical devices, a number of technological solutions are required – solutions that were invented by someone.  Items of modern, technical commerce are amalgams of invention – inventions of design, problem solution, manufacture, packaging, connectivity, etc, etc., - and invention costs money and time.