Patent on New Use of Herb?
Answered by: Conrad Richter
Question from: Shirl Hyams
Posted on: February 2, 2000

I hope that you can help me out. Eight years ago, while taking a single herb for stress and anxiety, I discovered that it also stopped the onset of a cold sore, or lesions, by days. I have 10 people who currently use it as their cold sore remedy. Do you know if I could get a "use" patent on this? I really don’t know what the laws are regarding herbs, but any information that you could give me would be great.

Also if I did get a patent, could other companies put it out as one of their products? I’d like to get this out to the public and have no idea how to go about it.

You should consult with a lawyer competent in this area of law in your country for advice. Our remarks here should be considered general and not necesarily applicable to your case.

Yes, it is possible to get patents on new uses for herbs. It is a controversal area both in law and in the public eye. There are many companies that have secured patents on the use of plants or their constituents. In some cases, such patents have been revoked or declared invalid when it turned out that the use being claimed for was in fact a traditional use from another ethnic culture. India successfully challenged a U.S. patent recently, and there have been other cases. In the public eye, there is the additional controversy that such patents have give the impression that someone patenting the lifeform itself, in this case, the plant, when, in fact, the claim is only for a particular use of that plant.

There is significant requirement to prove that what you have is indeed novel. That may add considerable costs in the case of a new use for a plant if you need supporting evidence. You may also need to prove your medicinal claim. Again, a competent lawyer will be able to help you to weigh the pros and cons of seeking a patent for your new use.

Once you get a patent, you have the right to license the technology to another firm. This very much the common practice, especially when the inventor is not in a position to commercial his or her invention.

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