Synthetic cell: Patent or No Patent?
The saga began when Dr. Chakrabarty applied for a patent for his genetically modified Pseudomonas. It instigated the whole debate of patenting life forms and its implications. The church put their foot down saying you cannot manipulate with creation of God. But thanks to the open mindedness of the courts the patent survived.
Same story repeated in case of Allen for patenting of genetically modified higher life forms. It was followed by the human genome sequencing initiative and patenting of genes. That too survived the battle. This was followed by the WARF patents for pluripotent stem cells which are still fighting for its existence. And finally the Craig Ventor’s Synthetic cell. Synthetic biology has always had trouble entering the Patent world. I am referring to today’s article in daily times India (http://www.dailytimesindia.com/2010/05/128038.htm) about the patenting run for this invention and the protest against the same.
The article stated that Professor John Sulston was not too happy with the patent run for this invention as he believes it would stunt the progress of technology by dissuading research in that direction. The last I checked, the rationale of patent system was to promote progress of science and technology. Is that being questioned here? Patent exclusivity has been often misconstrued as Monopoly by most scholars. But it’s far from being a monopoly. Literature has shown that in this world of improvement, incremental and alternate innovation monopoly through patent is just a myth.
Furthermore, on what grounds can a patent be rejected for such an invention? The invention deals with a genetically modified organism. But such organisms have been extensively patented ever since Diamond v. Chakrabarty. Ventor’s Cell is called synthetic because the DNA machinery of the cell is synthetically made. The Cell per se is not synthetic. The synthetic machinery for the sustenance of the cell is inserted into an existing cell. Hence the same cell gets a new life. The only difference between this invention and Chakrabarty’s invention is that in Chakrabarty’s invention only a small piece of gene was inserted, here the entire DNA sequence is. How could it have a different patentability standard?
Ventor’s patent application US20070269862 titled “Installation of genomes or partial genomes into cells or cell-like systems” claims a method for making a synthetic cell by obtaining a genome that is not within a cell; and introducing the genome into a cell or cell-like system. I do agree that this patent is very broad as it is not organism specific as in case of Chakrabarty’s patent. However, if the scope of claim is not clear from its wording the courts rely on the specification for determining its scope of protection. In this case, the specification talks about the experiments which are limited to Mycoplasma bacteria. Since the specification is used to analyze the extent of protection conferred to the claim, the claim scope is limited. Thus when Chakrabarty’s patent did not restrict the progress of technology why should it be any different for Ventor’s patent?
Moreover, restrain on progress can be checked upon by Antitrust/ Competition law or other alternate law restrictions. Restricting patent grant for such inventions may hinder the progress of technology as it would take away the incentive for research and investment in this field.