Court: patenting 'life'

"It sounded scary," said a young American who caught a few broadcast words on the Supreme Court decision allowing inventors to patent new forms of organic life. Where would it all end? Turning higher and higher organisms into patentable products with questionable controls? Increasing the chances of tiny Frankenstein monsters unpredictably escaping their makers? The court majority itself took note of a "gruesome parade of horribles" offered by those opposed to granting such patents.

But thre is nothing scary about the deciion if it is seen in a realistic context of what is happening in the rapidly evolving industry of biotechnology or bioengineering. Here human ingenuity is redesigning and manipulating minute organisms for such purposes as makign valuable chemicals and speeding chemical processes. The bacterium at issue in the Supreme Court case is one that "eats oil" in a way to speed the treatment of oil spills. Others could be applied to production of food, fuel, pharmaceuticals. Both industry and government have been concerned that appropriate safeguards be maintained.

It is a field of endeavor whose time has come, with or without patents. But the ability to obtain patents promises to accelerate expansion, with large firms waiting on the doorstep to push ahead on the lines a few smaller companies have been pioneering. And it also helps to keep the United States competitive in a world where the new technology is being taken account of.

For example, the European patent convention of 1973 provides for the deposit of invented microorganisms so the rights to them can be protected according to the laws of various countries. A Budapest treaty of 1977, to which the US is a signatory, brings East and West European countries together in providig for such deposit.

Under the Paris convention on protection of intellectual properly, an inventor in one country has a year from the time of patent in his own land to obtain a patent in another country with coverage going back to the date of his original patent. Plainly a US inventor or producing company would be at a disadvantage if the results of the new biotechnology had been ruled nonpatentable by the Supreme Court.

However, the court majority read existing patent law to cover the unforeseen development of engineered microorganisms under the rubric of "any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof." The court saw the oil-eating bacterium as a new composition of matter. This precise phrase helps to distinguish biotechnolgoy from any assumptions of "creating life" in a God-like sense. These are manipulations of matter which the court found to be patentable.

In a dissenting opinion, Justice Brennan raised the provocative point that, if Congress had believed the law to embrace such living organisms, it woudl not have passed separate statutes to cover varieties of plants. To which it can be said that Congress may have considered such statutes necessary for other reasons , such as the law's "new and useful" phrase. Some of the covered plants are orchids, for example, where "aesthetic" rather than "useful" may be the appropriate description.

Though the majority does make a strong case for the present law allowing the patenting of microorganisms, the public could be reassured by Congress's taking up the matter and confirming whether it does indeed intend such life forms to be patentable -- or whether it wants to specifically include or exclude them. This could be the opportunity for an airing of the whole question of biotechnology, with full public participation of the sort that sometimes is scanted when highly technical matters are at issue. Here the latter are so entwined with the need for ethical as well as physical safeguards that the public ought to be informed and involved each step of the way.

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