I. INTRODUCTION

The practice of using herbs as medicine and remedies for diseases and ailments is as old as the history of modern humans. In almost all cultures, doctors or medicine men used a variety of plants and herbs to treat persons inflicted with different types of malady. Perhaps the most notable is the rich history of the Chinese herbal medicines. Ancient Chinese remedies can be found for almost any type of disorder. One needs only to look at a traditional Chinese herbal remedy text or visit a traditional Chinese herbal medicine retailer to appreciate the scope and extent of Chinese herbal remedies. Today herbal products as remedy or medicine have experienced an explosive growth and profitable popularity. Today racks of herbal medicine can be found next to traditional over-the-counter medicines almost everywhere. This paper addresses certain problems that have arisen, and may arise in the future regarding the legal rights of the pharmaceutical companies with patented drug compounds on the one side, and use of plants and herbs that contain the same type of compounds on the other side. A hypothetical scenario on which this paper is based may be helpful.

Let us assume a group of anthropologists have recently discovered an unknown indigenous population deep in the jungles of South America. These indigenous people have never seen anyone from outside of their own territory, but upon encountering the anthropologists they show great interest in them. While the anthropologists study this group, they learn about the group’s rich and complex knowledge of plant and herbal medicines for treating a variety of ailments. Upon learning about the anthropologists’ interest in their knowledge of herbal medicine, the medicine man of the tribe shares all his worldly knowledge and wisdom with his newly found friends.

One particular herb catches the attention of one of the anthropologists who is also a medical doctor and familiar with the pharmaceutical drugs of the modern world. The medicine man uses this herb by boiling the herb in water until a thick soup is produced. The soup is then consumed by patients who have developed a certain disease of the skin diagnosed by the appearance of oddly colored spots on the skin. The anthropologist immediately recognizes that the oddly colored spots are in fact skin cancer. The anthropologist further recognizes that this herb works very similar to a newly patented drug in his home country, the United States, which is administered in the form of pills to patients with skin cancer. The doctor conducts experiments on the herb and finds that this herb contains the same compound as the patented drug that is used for the same purpose. Because this herb grows by the tons in the territory of the indigenous tribe, and because the doctor knows of the possibility of huge profits, he decides to abandon the reason for which he went to the area and decides to make his own anti-cancer herbal pill and sell it all over the world. The question this paper will try to address is what problems may arise with regard to the intellectual property of the pharmaceutical company based on the patent to the anti-cancer drug, and the anthropologist turned entrepreneur with regard to his anti-cancer herbal pill and what may be the answers to such problems.

The relevant literature in this area is almost entirely void of any direct authority on this issue; hence this paper will try to address this problem through analogy. Part II of this paper explains the United States’ patent laws, and the statutory requirements for receiving a patent. Part III discusses the patentability of natural products and ways in which products of nature may be patented. Part IV analyzes, through analogy, the types of problems posed by the above scenario and what answers are possible, and concludes with a proposition of a new way of interpreting current rules that would benefit both the pharmaceutical companies by providing them protection on their patents, and at the same time benefiting the public by giving them more choices.

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