You Didn't Build That: The Case Against Patentability of Isolated Organisms

If you walked into the woods and discovered a new type of mineral, picked it up, and brought it back to society, would you be entitled to a patent for that mineral? What if that mineral weighed two tons or was buried deep underground, and it required substantial financial resources and hard work to retrieve it? The answer to both of these questions is unequivocally no. Now what if you went out into the woods, discovered a new type of bacterium in the soil, retrieved it from the soil, and brought it back to society, would you be entitled to a patent then? The answer is, surprisingly, yes. What characteristic does an isolated naturally occurring organism have that a naturally occurring mineral lacks that makes the isolated organism eligible for a patent? This Comment will argue there is no distinction between these two discoveries: neither should merit a patent. Rather, due to the conflation of two distinct patent law requirements, patent eligible subject matter under 35 U.S.C. § 101 and novelty under 35 U.S.C. § 102(a), the