Can DNA Be Patented?

The world is currently welcoming some incredibly exciting scientific developments, with DNA research at the forefront of the new advancements. As with any cutting edge development, creators are keen to protect their knowledge and put legal patents in place. But when it comes to DNA, this concept is inherently controversial.

Australia vs America – two conflicting opinions

Australia and the USA are two of the world’s most powerful countries which share similar political, social and economic systems. Yet when it comes to patenting DNA, they’re of completely different mindsets. The Australian Federal Court recently ruled that human DNA can be patented. In comparison, the US Supreme Court says otherwise. So what’s the story behind the two conflicting viewpoints? Let’s take a look…

The emergence of DNA patenting

Under US Supreme Court law, it was possible to patent “anything under the sun made by man.” At the time, this included isolated human DNA.  In June 1988, Japan, Europe and the USA all reached an understanding about the laws regarding DNA patents. They ruled that DNA could be patented which paved the way for monopolisation by companies such as Genentech Inc. Eventually, the opportunity to patent human DNA became commonplace in developed countries across the globe.

The first dispute cases

In 1989, Britain was faced with its first case disputing DNA patent claims. The court ruled that DNA was in fact a discovery of nature and annulled Genentech’s monopoly over naturally produced human protein. The EU Patent Office was outraged by this ruling and in 1998, passed the European Biotechnology Directive, a legislation that ensured DNA patents were made legal throughout the EU.

The USA changes its tune

For years, DNA patents had been considered a routine claim. However, in 2010 a US District Court judge made headlines when he ruled that a company’s patent claim regarding isolated BRCA genetic mutations was invalid. Instead, he considered the DNA to be a naturally occurring molecule. The case reached the US Supreme Court, which eventually ruled that when isolating DNA from a human, scientists have not created something with “markedly different characteristics from any found in nature.” After the ruling, the US Patent Office issued new regulations which have received differing responses. While open researchers and universities have welcomed the new liberty, profitable companies have criticised the decision and claim it will discourage investors, financiers and the establishment of privately funded projects.

Today, US courts are of the opinion that allowing companies to patent human DNA will “impede the flow of information that might permit, indeed, spur, invention.” As such, US scientists are free to use DNA to create, develop and launch new products. In comparison, Australians and Europeans do not enjoy this freedom.

So can DNA be patented? At the end of the day, it comes down to which country you reside in and what the court deems of your patent claim.

If you enjoyed this article, you may like to learn how DNA interpretation has evolved and its implications for identification in criminal law courts in this article: DNA Technology: 150 Years of Research and Development. 

Bootstrap DNA by Charles Jencks, 2003