US Code as of: 01/26/98
Sec. 103. Conditions for patentability; non-obvious subject matter
- (a)
A patent may not be obtained though the invention is not
identically disclosed or described as set forth in section 102 of
this title, if the differences between the subject matter sought to
be patented and the prior art are such that the subject matter as a
whole would have been obvious at the time the invention was made to
a person having ordinary skill in the art to which said subject
matter pertains. Patentability shall not be negatived by the
manner in which the invention was made.
- (b)
- (1)
Notwithstanding subsection (a), and upon timely election
by the applicant for patent to proceed under this subsection, a
biotechnological process using or resulting in a composition of
matter that is novel under section 102 and nonobvious under
subsection (a) of this section shall be considered nonobvious if -
- (A)
claims to the process and the composition of matter are
contained in either the same application for patent or in
separate applications having the same effective filing date; and
- (B)
the composition of matter, and the process at the time it
was invented, were owned by the same person or subject to an
obligation of assignment to the same person.
- (2)
A patent issued on a process under paragraph (1) -
- (A)
shall also contain the claims to the composition of matter
used in or made by that process, or
- (B)
shall, if such composition of matter is claimed in another
patent, be set to expire on the same date as such other patent,
notwithstanding section 154.
- (3)
For purposes of paragraph (1), the term ''biotechnological
process'' means -
- (A)
a process of genetically altering or otherwise inducing a
single- or multi-celled organism to -
- (i)
express an exogenous nucleotide sequence,
- (ii)
inhibit, eliminate, augment, or alter expression of an
endogenous nucleotide sequence, or
- (iii)
express a specific physiological characteristic not
naturally associated with said organism;
- (B)
cell fusion procedures yielding a cell line that expresses
a specific protein, such as a monoclonal antibody; and
- (C)
a method of using a product produced by a process defined
by subparagraph (A) or (B), or a combination of subparagraphs (A)
and (B).
- (c)
Subject matter developed by another person, which qualifies
as prior art only under subsection (f) or (g) of section 102 of
this title, shall not preclude patentability under this section
where the subject matter and the claimed invention were, at the
time the invention was made, owned by the same person or subject to
an obligation of assignment to the same person.