Will Patenting Sea Worms Lead to Global Inequality?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Oct 3, 2018

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DNAIn the landmark 1980 case of Diamond v. Chakrabarty, the US Supreme Court ruled that a living organism could be patented.

The case involved a strain of bacteria that had been modified by the insertion of new genes and didn’t occur in nature. The bacteria were useful because they had the ability to break down hydrocarbons, and the inventor thought they could be used to clean up oil spills.

In 1988, a biologist at Harvard was granted the first patent for a mammal — a mouse that had been engineered to be more susceptible to cancer, for research purposes.

But in 2013, the US Supreme Court ruled in the case of Association for Molecular Pathology v. Myriad Genetics, Inc. that human genes can’t be patented because DNA is a “product of nature.”

Before the Myriad ruling, more than 4,300 human genes had been patented. The Supreme Court’s decision invalidated those patents.

Patent Law

A patent is a government-issued monopoly that gives an inventor, for a limited time, the right to exclude others from doing certain things. Anyone who does those things without authorization from the patent holder is said to engage in patent infringement.

As the US Patent Office notes,

Infringement of a patent consists of the unauthorized making, using, offering for sale, or selling any patented invention within the United States or U.S. Territories, or importing into the United States of any patented invention during the term of the patent.

Patents are available to anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” — with certain limitations.

Laws of nature (e.g., “E=mc squared”), physical phenomena, and abstract ideas aren’t patentable subject matter.

The current patent term is 20 years from the date of the patent application. After a patent expires (or is invalidated), anyone is free to use the formerly-patented invention.

A Product of Nature

As the New York Times notes,

In most countries it’s not possible to patent “a product of nature.” But what companies and research institutions can do is patent a novel application of a given organism, or more specifically, its genes.

Sea creatures that can deal with extreme conditions — such as darkness, cold, acidity, and other harsh environments — are especially interesting to researchers.

As the Times reports,

Among patent applications that have gotten somewhere: a sea slug contributed to a lymphoma treatment, a sea squirt’s genes helped in a chemotherapy drug and a marine snail’s DNA were used to formulate a pain medication…

In addition, alvinella pompejana, a type of deep sea worm, has been used in skin creams and its gene sequences appear in 18 patents.

One company has patented gene sequences from sperm whales in hopes of creating a dairy substitute.

Global Inequality

There are at least 13,000 patents involving the DNA of sea life, and 98% of the patents are held by companies in 10 highly-developed countries, including the US.

Some fear this will fuel a “new kind of global inequality.”

The United Nations has recently debated creating a global legal framework for “genetic resources in the high seas.”

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