Last year, a question was submitted to the GMO advocacy website GMOAnswers about whether or not the USPTO should allow the patenting of living organisms.
Under 35 U.S.C. 101, “the laws of nature, physical phenomena, and abstract ideas have been held not patentable.” Therefore the USPTO cannot and does not award patents on living organisms that were
merely discovered in nature.
However, the U.S. Supreme Court Ruled in Diamond v. Chakrabarty that a “nonnaturally occurring manufacture or composition of matter—a product of human ingenuity—having a distinctive name, character, [and] use” is patentable subject matter.”
The Supreme Court ruled that if a bacterium or other living matter was engineered, by man, to do something that it cannot do naturally, it is patentable under the same conditions that apply to any other kind of invention.
Historically, there has been a precedent to protect these kinds of innovations which are derived from living organisms. Patented engineered microbes are used in many scientific processes-including the production of antibiotics and the fermentation of organic wastes. Patents have also been awarded for new pest or herbicide resistant crops varieties.
According to Hans Sauer, BIO’s Deputy General Counsel for Intellectual Property:
“Biologically engineered organisms like pest-resistant crops, or modified bacteria for producing antibiotics, can be very expensive and time-consuming to develop. And because they are living and capable of reproduction, they can very easily be copied by competitors without a lot of reverse engineering. For such products, patent protection is often needed to provide assurances that great investments of time and effort ran be recouped down the line.”
Patents ensure that innovative changes to living matter, changes which offer new products with distinctive differences to the natural product, are protected, incentivizing investment and future research into life-changing inventions.