Geoscience Reference
In-Depth Information
metals, are part of the storehouse of knowledge of all men [
sic
]. They are mani-
festations of the laws of nature, free to all [people] . . . and reserved exclusively
to none.
The logic underpinning these two judgements was used once more in
1980, in what became one of the most influential patent decisions ever
made. In the case of
Diamond versus Chakrabarty
, a biochemist working for
the General Electric Company filed 36 patent claims pertaining to a bac-
terium that had been genetically modified for the purposes of breaking
down crude oil. Despite Chakrabarty's bacterium being apparently useful,
novel and non-obvious, the US Patent Office denied him a patent. It ruled
that it wasn't possible to patent a whole organism. By a narrow major-
ity, judges in the US Supreme Court subsequently decided that the patent
should be granted. They argued that it was irrelevant whether a patent per-
tained to inanimate or animate entities, so long as the criteria for granting
a patent could be convincingly demonstrated. For the Supreme Court, 'liv-
ing nature' could be invented (including a whole organism); however, this
meant that it was (and had to be shown to be)
different in kind
from other
natural processes and phenomena that could not be. Since
Diamond versus
Chakrabarty
, biotechnology firms such as Genentech have been able to file
a great many patent claims pertaining to entire living entities or key parts
thereof (such as sections of DNA).
Quite aside from the bioethical questions that arise from attempts to 're-
engineer nature', biotechnology patents stir passions in at least two other
areas. On the one hand, some critics argue that despite the
Ex parte Latimer
ruling and similar subsequent ones, many biotech firms are wilfully trying
to profit from patenting what are, in fact, natural processes or entities. They
seek to do so by
stretching
the meaning of 'invention' so that it substitutes for
what are, in actuality, 'discoveries'. This reduces the size of the ontological
zone taken to be natural and expands the realm of the non-natural to the
commercial advantage of corporations. For instance, in 2001 the American
biomedical firm Myriad Genetics successfully filed seven patents on two
human genes (called BRCA 1 and 2) associated with the development of
hereditary breast and ovarian cancer respectively. The patents underpinned
expensive diagnostic test procedures for the cancers that had been invented
by Myriad and for which it charged patients.
However, in 2009 the American Civil Liberties Union (ACLU) lodged
a legal case against Myriad and the US Patent Office, seeking to make it
a test case for all attempts to patent information about naturally occur-
ring genes. In March 2010, the US District Court Judge Robert W. Sweet
issued a 152-page decision in which he upheld the ACLU complaint. His
ruling accepted the ACLU argument that 'isolating' genes is not an act
of manufacture according to patent law. In pushing back the expanding
semantic frontier of 'invention' in biotechnological patent claims, Sweet
