1.1 Naturally occurring substances

As learned before, natural substances are arguably no inventions as they do not result from human creativity. A country seeking to keep a broad public domain which enables everybody to use the natural substance for their own R&D, can therefore exclude naturally occurring substances from patentability.

The same could apply to substances that are isolated from their environment. The natural substance would in this case only be patentable if the substance itself was changed.

IDevice Icon Examples: Argentina and Rwanda

See how, for example, Argentina and Rwanda deal with this question:

Article 7 (b) of Argentina's Patents Act (Law 24.481) excludes "all biological and genetic material existing in nature or derived therefrom in biological processes associated with animal, plant and human reproduction, including genetic processes applied to the said material that are capable of bringing about the normal, free duplication thereof in the same way as in nature."
   
Article 17.4 of Rwanda's draft patent law (as of March 2008) states that "the following shall be excluded from patent protection even if they constitute inventions under Article 5 (7) of this Law : [...] natural substances, even if purified, synthesised or otherwise isolated from nature; nevertheless, this provision shall not apply to the processes of isolating those natural substances from their original environment; [...]."

While a natural product as such may be considered as lacking technical effect and thus as not constituting an invention, the situation may be different with respect to the process for isolating biological substances, which remains patentable subject matter. The same is true for the method of using a product, i.e. applying a natural product to the human body. This may well generate a biological effect on the human body, which is under many laws considered equivalent to a "technical" effect. Both latter cases open the possibility for granting process patents.
IDevice Icon Please note
Process patents, as opposed to product patents, are more limited in scope than product patents. They do not cover all possible methods of making a product, but only a particular way of making and using a product. Thus, they leave third parties free to make the product through a different, not protected process. Process patents for the isolation of natural substances from nature could provide an incentive to local inventors to conduct research in this area. In the end, however, they also restrict the public domain.

When making your policy decision regarding patents on natural substances, you have to balance the interest of local inventors, if any, and the public interest in free access to natural substances. In this context, you should also keep in the back of your mind that - under the doctrine of independence incorporated into TRIPS from the Paris Convention, Article 4bis - your local inventor can apply for patent protection in foreign countries even if such protection is not granted in your own country.
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