Shark skin has a remarkable ability to inhibit the growth of bacteria and fungus, spiders are known for spinning silk that has remarkable strength against breaking, and geckos can walk up walls and across ceilings. Many natural organisms possess certain amazing characteristics that humans would love to have at our disposal. This has lead to the field of biomimicry, where humans attempt to imitate elements that occur in nature and use them to solve human problems. But the question is can these man-made attempts at recreating naturally occurring phenomena be patented?
Patent law has a long established principle that products of nature are not patentable. The Supreme Court recently held in the Myriad case that DNA that is merely isolated is a product of nature and is not patentable. The divide between unpatentable products of nature and patentable biomimetic inventions is not easy to define.
Perhaps the most famous example of patented biomimicry is a product that everyone is familiar with, Velcro.
Velcro was developed in 1940 by a Swiss engineer Georges de Mestral after his dog had gotten into some burrs. As he was picking out the burrs that were stuck to his dog, he noticed how strongly they gripped the fur. He placed them under the microscope and had his spark of creativity. This led to the development of the highly commercially successful hook and loop fabric that we now know as Velcro.
More recently, a patent was granted on a soy based adhesive that imitates the goo that keeps mussels firmly attached to rocks in the churning waves of the ocean. And Sharklet Technologies has obtained a patent on a coating that resembles the skin of shark and protects ship surfaces from unwanted bacteria.
In 2008, it was estimated that the top 100 biomimetic products netted $1.5 billion in profits over the course of four years. And the future is even brighter. The potential market for biomimicry inspired products is estimated to be $300 billion by 2025.
The difference in obtaining a patent and being denied as a product of nature is a matter of claim construction. Claiming isolated DNA, a burr, the skin of a shark, or the feet of a gecko is sure get your patent quickly denied as an unpatentable product of nature. However, a well drafted patent directed at products that imitate nature may be the key to protecting a great invention.
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– Ex astris, scientia –
I am and avid amateur astronomer and intellectual property attorney in Pasadena, California and I am a Rising Star as rated by Super Lawyers Magazine. As a former Chief Petty Officer in the U.S. Navy, I am a proud member of the Armed Service Committee of the Los Angeles County Bar Association working to aid all active duty and veterans in our communities. Connect with me on Google +