Even to the average lawyer, patent law is a bit of a mystery. I confess, I am a lawyer and it is almost as foreign to me as the practice of medicine. (I image the specialty of patent law in the legal community is like neuro-surgery in medicine.) In any event, I’ve been doing a bit of research on patent law which I haven’t dealt with since I took an introductory intellectual property law course in my second year of law school. My renewed interest in the subject was spawned by some recent research I was doing about corn gluten. I have a friend who is an organic lawn care professional and I also have a relative who is a gardener and entrepreneur who is thinking about selling corn gluten. Since both of them were talking about this product I thought it was worth spending 20 minutes on Google checking it out. I learned, as I am sure you organic gardeners know, that corn gluten is a natural herbicide. (*Corn gluten is a natural powdery by-product of the corn milling process.) The product is completely organic and not only is it a effective weed preventive it also contains a high percentage of nitrogen and is a great fertilizer.

What surprised me about this was not that a corn by-product was a natural herbicide and also acted as a fertilizer; I was surprised that our patent law system allowed a Iowa State University researcher to patent the use of corn gluten as a herbicide. I understand the basic policy behind patent law: to encourage people to expend their time and energy developing new products by rewarding them with exclusive rights to the fruits of their labors for a period of years. This makes sense to me and I think it is generally a good system in most cases, but sometimes it just seems to go to far.

Take corn gluten for example, this is a product that has probably been around for thousands of years. People have used it for a number of different uses, the primary use being feed for livestock. Sometime in 1985, a scientist at Iowa State University is claimed to have discovered that the product can also be used as a herbicide. Shortly thereafter he filed for, and obtained, a patent for the use of corn gluten as a herbicide.

So I’m a little bit torn about this. The lawyer in me says, “well, without the protection of the patent law system Dr. Corn Gluten and Iowa State wouldn’t have any incentive to discover new uses for products and it may have never happened.” The normal person in me thinks, “what the fu@%!, its corn meal mush! How can you patent that?!” I understand the policy from an intellectual standpoint but is seems that in some cases (like this one) it goes a bit too far.

The part about this that I think most concerns me is that I’m not sure if the patent system actually achieves its intended result. At least in this case (and the case of my relative) the fact that the patent exists will likely prevent him from producing and selling corn gluten. I am sure there are several other potential marketers of this product who will be deterred from bringing a environmentally friendly alternative to toxic herbicides to market because they do not have the capital to pay Iowa State licensing fees to sell it.

I guess I’m still not entirely certain about how I feel about this. I guess there is just some part of me that feels like ti is unfair to let someone of exclusive rights to any use of something as common as corn. From a legal prospective, I think the fundamental flaw in our patent law system is that it assumes that the patent holder will do a good job of bring the product to market or finding those who will. That doesn’t always happen and as a result we are deprived of use of a valuable product until the patent expires.