Here is an interesting article covering the issues involved in patenting biological material.
It's been almost 30 years since Diamond v. Chakrabarty, where the U.S. Supreme Court held that genetically engineered bacteria were patentable subject matter, and there is still controversy surrounding the patenting of genes, gene fragments, proteins and genetically modified material.
The main issues involve an ideology that science and scientific research should be 'free' and 'open' to facilitate progress in research and innovation, which conflicts with the practical reality that scientific research has become a business and a key component in the US economy that needs the protection the patent system offers to ensure success.
One of the arguments in support of patenting in this area is that patent rights are a way to ensure that an entity can either court or recoup investment in research and development of necessary biotechnology. Science is complex, expensive, and often unrewarding. Viewing biotechnology and the science behind it in a pure, ivory tower sense, where patenting should have no place, is naive at best and painfully ignorant at worst. Science, like art, has always thrived on patronage and legal protection. It is human nature to profit on all forms of creativity one way or another.
However, that legal rights and money are attached to innovation should not take away from the noble aspects of the work and progresses made in the scientific field. At its heart, scientific research is about understanding our world and making our lives better because of that understanding.
Aside from the main issues, there is the question of patentable subject matter that seems to be yet unresolved in the genetics arena. It is important that the patent system respect the science behind the inventions sought to be patented if there is to be any confidence in the system or in the technology. Certainly, a gene or protein manufactured in a laboratory setting does not occur in nature and could thus meet the standard. However, there seem to be problems with how the PTO is dealing with genetic patents. Specifically, it is troubling that many patents are sought on DNA fragments whose function remains unknown.
There is still much that isn't understood about DNA and genes and it is essential that all those involved in gene patenting be educated to protect the integrity of DNA science and the biotechnology industry before either rushing to grant these patents or to condemn them.
Welcome to Law and Tech, a blog about the wonderful interplay of Law and Technology. This is the place where we can discuss anything in that broad realm: from patent reform, to quirky cases, to anti-trust. I also do not intend this to be a solo project. Maybe I'll be able to get some other people to help out and contribute.
“There are two mistakes one can make along the road to truth...not going all the way, and not starting.” -- The Buddha