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Patents Corner
Are Life Forms Patentable?
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by Becky Mahurin
Are life forms patentable? Can microorganisms, for instance, be patented? Prior to 1980 the answer to this question was no. Microorganisms were clearly "products of nature" and as such were not considered patentable. However, the era of maneuvering DNA between organisms changed that.
In 1980 the Supreme Court in the case of Diamond v. Chakrabarty ruled that genetically altered microorganisms were indeed patentable based on the following criteria: they were man-made; they were products of human manipulation and therefore considered similar to any other invention; and they had a specified use (one criterium for patenting is that the invention have utility). Also, the Supreme Court cited the fact that there was precedence for patenting living matter. Since 1930 certain asexually reproduced plants have been protected by patenting. Further, in 1970 the Plant Variety Protection Act allowed for protection of some sexually reproduced plants.
This ruling by the courts opened the door for biotechnology to become big business. Now companies could protect products based on genetically altered organisms.
The next issue for the Patent Office regarding patenting of life forms became the patentability of genetically manipulated animals. In 1988 a patent was allowed for the first genetically altered animal, a mouse that was very susceptible to cancer. This mouse showed promise in testing potential carcinogens.
Microorganisms, plants and animals have now all received U.S. patenting status. Europe views patenting of "man-made" life in much the same manner as the U.S. patent office. Canada, however, still does not allow patenting of life.
The issues surrounding patenting of living entities are complex. Many people have concerns over the fundamental and ethical questions raised by such action. This may be the reason that not all countries are consistent in finding genetically manipulated entities to be patentable. Because there are no easy resolutions to this issue, I anticipate it to be the topic of ongoing debate in the scientific and legal communities for some time to come.
Becky Mahurin
Director of the Technology Transfer Office at MSU
© 2000 Montana State University-Bozeman
Discovery May 1996
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