Nature is not patentable because of lack of human intervention and innovation. Section 18(3) of Patents Act 1990 provides that plants and animals as well as the biological processes generating plants and animals are not patentable inventions. This provision excludes nature from the subject matter of patenting. However, a microbiological process or product of such a process may be patentable (section 18(4) of Patents Act 1990). Although nature by itself is not patentable, the inventions using natural biological processes may be patentable. In Diamond v Chakrabarty (1980) 447 U.S. 303, the Supreme Court held that microorganisms produced by genetic engineering were not precluded from patent protection. In this case, plasmids were added to a bacterium and were used to break down components of crude oil. Although bacterium is natural, the modification of it was a product of human ingenuity. The modified product is not completely natural and markedly different from that found in nature. The modified bacteria were hence patentable. In this case, the court argued that whether an invention embraces living matter has no bearings with its patentability and established a test for the patentability of natural living matter. If the living matter is the result of human intervention, namely the result of human ingenuity, invention and research, and markedly different from what is found in nature, it is patentable.
The fundamental feature of copyright is that it only protects express other than ideas, procedures or concepts. With regard to software, copyright prohibits a writer from copying others’ software. However, it does not prevent a writer from copying the ideas or concepts in others’ software for the same purpose. If the software you write only has copyright and been published publicly, you cannot prohibit others from developing new form of software by using the ideas or concepts in your software. In this circumstance, your software will lose its commercial value. Different from copyright, software patents provide a patent monoploy to the owner of the software. The patentee obtains an exclusive rights of the patent to exploit or authorise others to exploit the invention (section 13(1) of Patents Act 1990). Anyone else is not allowed to use the concepts or ideas in the software without the consent or legal exceptions. The writer of the software is hence better protected with regard to expressions and ideas respectively under copyright and patent law.
With regard to confidential information, trade secrets of a business and general knowledge and skills obtained by employees are distinguished in law. Trade secrets such as formulae and client names are confidential information protected under the law and no disclosure is allowed. Employee “know-how” is usually not protectable unless otherwise stipulated in express confidentiality provisions in employment contract. Regarding former employees’ obligation of confidentiality, in Blyth Chemicals Ltd v Bushnell (1933) 49 CLR 66, Gowan J argued that former employees have obligation of confidentiality to trade secrets and client names and other confidential information obtained in the employer’s business other than special skills or common knowledge acquired in the course of employment.
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