Regarding the patenting of natural products and processes, the law is a moving target but here is some guidance (if you can call it that):
Nature-Based Products
The following examples should be used in conjunction with the 2014 Interim Eligibility Guidance. They replace the examples issued with the March 2014 Procedure For Subject Matter Eligibility Analysis Of Claims Reciting Or Involving Laws Of Nature/Natural Principles, Natural Phenomena, And/Or Natural Products and related training. As the examples are intended to be illustrative only, they should be interpreted based on fact patterns set forth below. Other fact patterns may have different eligibility outcomes.
This example illustrates the difference between a nature-based product claim having multiple components that are unchanged because they are not combined (claim 1), and a nature-based product claim having multiple components that are changed by their combination (claim 2).
Background: Goats are naturally occurring animals that produce milk to feed their young. Humans have consumed goat milk and products made from goat milk (e.g., cheese and yogurt) for centuries. One well-known method of making goat yogurt is to create a starter culture by mixing raw goat milk with bacteria, and then heating the starter culture to about 115 degrees Fahrenheit for several hours so that the bacteria can ferment the milk.
Applicant has discovered a new naturally occurring bacterial species that it named Lactobacillus alexandrinus. Goat milk yogurt made with L. alexandrinus has a pleasant tangy flavor. Neither S. thermophilus nor L. alexandrinus occur naturally in goat milk, and these bacteria do not occur together in nature. Applicant has also discovered that when mixed, S. thermophilus and L. alexandrinus have different properties than either bacteria has alone: (1) the mixed bacteria act synergistically to ferment goat milk at twice the speed than either bacteria can ferment by itself; and (2) the resultant goat yogurt is much lower in fat than either bacteria can produce when used by itself. Applicant discloses compositions comprising a goat milk starter comprising goat milk mixed with S. thermophilus and L. alexandrinus. Applicant also discloses kits for preparing goat milk yogurt. The kits comprise a separate packet of S. thermophilus, and a separate packet of L. alexandrinus, and may also comprise instructions for combining the two bacterial species with goat milk to make yogurt.
Claims:
1. A kit for preparing goat milk yogurt comprising: Streptococcus thermophilus and Lactobacillus alexandrinus.
2. A yogurt starter culture comprising: goat milk mixed with Streptococcus thermophilus and Lactobacillus alexandrinus.
Claim 1: Ineligible. As described in the specification, both S. thermophilus and L. alexandrinus are naturally occurring bacteria. There is no indication in the specification that the claimed bacteria have any characteristics (structural, functional, or otherwise) that are different from the naturally occurring bacteria.
Claim 2: Eligible. As described in the specification, when S. thermophilus and L. alexandrinus are mixed, the two bacterial species have different characteristics than either species does on its own, e.g., they act together to ferment milk into a lower fat yogurt than either bacteria can produce when individually mixed with the milk.
https://www.uspto.gov/sites/default/files/documents/mdc_examples_nature-based_products.pdf
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comment: should also be taken with a grain of salt
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