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.

In a recent article in Journal of Intellectual Property Law and Practice, I objected to patents on whole organisms. Life forms are more complex than any truly human artefact; they are too little understood to justify legal dominion over their production and progeny; and the role of natural forces independent from human intervention is far too great for us to claim we have made them ourselves. Most importantly, as living things they have agency and autonomy – they are not robots designed purely to serve human needs, and they cannot yet be made to behave as such. All life-forms are recalcitrant from a human perspective. Metaphors and analogies have served to distract our attention from these fundamental problems.

However, the emergence of synthetic biology suggests the situation is changing. Synbio aims at making artificial cells and life forms functionally indistinguishable from naturally occurring ones and interoperable with them. At its most extreme it seeks to add completely new functions. PhytoMetaSyn, a project I am involved in as advisory board member, for instance, seeks to produce plant metabolites in yeasts. I find the scientists’ work deeply impressive. And yet, scientifically, commercially and also in terms of patenting, much in this emerging field hangs on the impression that synthetic biology is an exact science. Choosing the right metaphors, analogies and discourse is very important in this sense. For a long time, chemical, mechanistic and informational ways of explaining life have been deployed. Nowadays, we see the adoption of discourse from electrical and systems engineering. In my view, what philosopher Michael Ruse calls ‘root metaphors’ have served to erase boundaries that should exist, at least in the context of patent claims. This is especially so when metaphor is put forward not as metaphor but as literal truth, so that a like gets treated as an is. In other words, a claim that A is like B in certain helpful respects becomes A is B, or is a subset of B. (Perhaps we could call this ‘the metaphoristic fallacy’: deriving an objective ‘is’ from a subjective ‘is like’).

Courts facing difficult patentable subject matter decisions may decide on the basis of tests, the fulfilment of which satisfy the invention criteria. Otherwise, they may resort to an analysis of what certain key words and concepts mean: is this subject matter a patentable invention according to the meaning of this word or concept? They may also, or in addition, reason by analogy, especially if the subject matter at issue has previously not commonly been protected.

To treat a living organism as analogous to a manufactured or purified chemical composition neatly sidesteps the immense differences between inanimate chemical substances, however well characterised, and even the most ‘simple’ unicellular life-forms. Organisms are chemicals of a complex kind but it does not follow that they are patentable just because other chemicals are or because scientists have modified them. Cells may operate and interact with other cells mechanistically. Functional elements and processes within cells may reasonably be labelled as ‘mechanisms’. Accordingly, cells are like machines. But it does not follow that they are machines like any other. As for engineering, scientists have recently devised a new graphical notation for biology diagrams that they hope will become universal, and which adopts the circuit engineering approach. However, as a scientist warned in a Seed Magazine article (http://seedmagazine.com/content/article/blueprinting_biology/P1/): ‘when trying to design a language that will advance our understanding of something as complex as a biological system, adhering so closely to any sort of analogy – be it with circuit diagrams or traffic signs – can be unnecessarily limiting’.

Current achievements notwithstanding, the ultimate proof of the synbio concept requires the complete construction of a life-form in the laboratory. Despite the hype coming from certain quarters, we are simply not there yet. When we are, the engineering analogy presumably will finally fit perfectly, thereby ceasing to be an analogy. Synthetic biology will be a form of engineering. Organisms will truly become manufactured mechanical devices at least in the artificial environments in which they will be placed.

However, this is not to say that opponents of patents on life forms will necessarily have no technical or conceptual grounds left for their position. Even to a materialist like me, until such organisms cease to be animate – and how one will determine that will fascinate future scientists, philosophers and lawyers – present objections will still carry weight. Life is different from non-life, and that is relevant for patent law.

One thought on “Are life forms (still) inherently unpatentable? – Graham Dutfield

  1. Thanks for a great blog Graham. It’s a real pleasure to see someone at the top of their game, smashing the ball around, at such a high altitude of analysis. Here’s my two-penny worth. I suspect our prejudices on the patentability of life are pretty well aligned, however, if that’s the goal, is this the best strategy? In pointing out the gaps between the state of the art and the metaphors used by scientists and pundits, haven’t you provided a shopping list of criteria to be fulfilled by anyone wanting a justifiable patent on a life form? As you point out, once human-built organisms are autonomous and animate, some will argue that the metaphors will have become literal. What if these accomplishments aren’t as far off as you think? Or, and I think this is a more likely cause for concern, who will decide where the bar for these criteria should be set? Given enough money and very good lawyers … well they wouldn’t be very good lawyers if they couldn’t find an argument which brought the bar low enough.

    Instead of entering into a debate over language and concepts, what about advancing the political arguments for excluding innovations in certain classes of product from patentability? There are long-standing traditions of placing various products outside the bounds of patentability, for what have often been politically motivated reasons, why not tap into these? In more recent times we’ve had a US roll back on the patenting of genes. Perhaps these gains could be best consolidated with, for example, a clear exclusion of food and medicine innovations from patentability? While this isn’t as elegant an argument as yours, wouldn’t we be better served by picking out the categories of products whose commodification concerns us and arguing for their exclusion from patentability? Just as some are arguing that the commodities markets (including food commodities) should be protected from derivatives speculation, I think there’s an argument to be made (one which i’m just gesturing at for now) for excluding innovations in food and medicine from patent protection. In the last 50 years the categories of exclusion for patentability have been slowly but steadily eroded, however some categories still remain – diagnostic tools in Europe for example. As we look to the next 50 years, access to resources is going to be a key issue. Wouldn’t it be an ideal time now to open up a political debate about which types of resources are too important to us, as a society, to be patentable?

    Cheers,
    Berris

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