In a nonprecedential opinion, the U.S. Court of Appeals for the Federal Circuit affirmed the rejection of patent claims on a purportedly new breed of domestic cat. In re Frank Robert Ditto, No. 2012-1182 (Fed. Cir. Dec. 7, 2012). The patent applicant claimed as a new and useful “invention” a cat breed produced by mating a domestic cat with a bobcat, lynx, or bobcat lynx. The allegedly distinctive features of the hybrid offspring included having “a deep voice like a bobcat lynx,” “webbed feet with extra padding of long fur in between toes,” and “an extreme intelligence, confidence, and loyalty, behaving more like a dog than other domestic cats.”
The patent examiner the patent application on the ground that the “invention” was anticipated by prior art, including a 1994 Seattle Times newspaper article describing the “Pixie-Bob”–which the court described as “a breed that developed naturally as the result of a bobcat mating in a barn with a family’s domestic cat.” The Board of Patent Appeals and Interferences affirmed that decision, as did the Federal Circuit in a December 7, 2012 decision.
Note: Article 27.3(b) of the World Trade Organization‘s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) permits WTO member states to exclude from patentable subject matter “plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes.” Many patent regimes implement this permitted exclusion through provisions such as Article 53(c) of the European Patent Convention, which deems “plant or animal varieties” not subject to patent protection. The U.S. Patent Act, however, contains no such per se exclusion for animal breeds. Accordingly, U.S. patent examiners and courts consider claims relating to animals in light of the familiar patentability criteria of novelty, non-obviousness, and usefulness.