Category Archives: Patentable subject matter

Are life forms (still) inherently unpatentable? – Graham Dutfield

Despite years of studying the law, history, economics and politics of patents, I have never quite got used to the idea of patenting a living thing. Are my doubts justified? One could argue that it is just a logical extension of existing patent norms. Machines have been patentable for a very long time; indeed, it is commonly assumed that patents are there to protect mechanical devices. If machines can be patented, then why can’t living things be, if they are modified to serve some practical end? If that is too much of a stretch chemicals arguably provide the right precedent. For centuries processes for extracting products from nature have been patentable as have the substances themselves. The case for patenting chemicals seems even more legitimate for chemicals synthesised in a laboratory, fully characterised, and not known to exist in nature even in crude impure form. Obviously, organisms are chemicals albeit with life cycles.

One could question the assumption that the chemical arts fit neatly within the conventional patent rules and regulations. But that is not my purpose here. Rather, my aim is to challenge the view that living organisms are inherently patentable. I will offer reasons why life forms cannot be classed as inventions, and then consider whether synthetic biology fatally overcomes my objection. This will involve my discussing prevalent modes of communication concerning the meaning of ‘life’ and seeing these modes for what they are: metaphor and analogy as opposed to pure objective truth.

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