The World’s First Patent on a Living Organism and the Birth of Commercial Biotech
It is time once again for an installment of IP’s greatest hits, a look back at significant developments in the history of intellectual property institutions that have had a profound effect on the world, as well as IP theory and policy. In the previous installment of this greatest hits collection, we looked at the 1991 Grand Upright case, and its effect on the development of copyright law vis-a-vis digital sampling of recorded music. In this post, we will go back even further in time…
…to June of 1980. The US presidential election, in which Califorina governor and pioneer in human-chimpanzee child rearing techniques Ronald Reagan trounced Jimmy Carter, was still many months away. A cable channel with the bizarre goal of broadcasting news 24 hours a day, CNN, launched; a heat wave that would eventually claim the lives of 1700 people in the United States began; and on June 16th, the US Supreme Court handed down its decision in the case of Diamond v. Chakrabarty. The result of that decision was that living organisms – specifically, a genetically engineered bacterium, Psuedomonas Putida, created by Ananda Chakrabarty in 1971 – were patentable subject matter.
The story of the case begins in 1965, when Ananda Chakrabarty, fresh off completing his PhD at the University of Calcutta, moved to the University of Illinois to study the properties of Psuedomonas bacteria. Pseudomonads are a family of bacteria that have the uncanny ability to break down and assimilate large, complex organic compounds, such as camphor. While at Illinois Chakrabarty identified and isolated the genes that allowed pseudomonads to accomplish this task. After moving to the research and development division of General Electric, Chakrabarty became interested in using psuedomonads to break down large amounts of crude oil into benign proteins. Initially, the idea was that this could have some role in commercial food production in poor countries where protein was expensive, but crude oil was very cheap. However, after the 1973 oil embargo, and several high-profile environmental disasters caused by oil spills, Chakrabarty became interested in the possibility of using pseudomonads to clean up after oil spills.
There was, however, a problem: individual Pseudomonas strains possess only a handful of the genes that enable it to break down the hydrocarbons in crude oil. Chakrabarty figured that a strain that contained all the genes might be able to handle a significant amount of oil, and so he inserted plasmids containing the genes into a single strain of Psuedomonas Putida and cultivated it in his GE laboratory. The result was a recombinant organism, a genetically modified pseudomonad capable of breaking down (in theory, at least) large amounts of crude oil. At the time, living organisms were not considered patentable subject matter, but GE filed for a patent on it anyway, figuring they could make a credible argument that genetically engineering the organism meant it was an invention. The case eventually found its way to the Supreme Court, and was argued in March of 1980. In June the court handed down its decision: in a close 5-4 vote, they ruled that genetically modifying the pseudomonad meant that Psuedomonas Putida was just like any other invented “composition of matter”, and could be patented. US Patent #4,259,444, the world’s first patent on a living organism, was upheld by the highest court in the land.
The Chakrabarty case was a landmark, and is easily one of the most consequential and important intellectual property decisions of all time. We are still grappling with the effects and the ethical implications of allowing patenting of living organisms. Among the most important of these effects was the creation of the commercial biotechnology industry. By allowing patenting of living organisms, the Supreme Court provided a way for biotech firms to leverage patents on GMOs into an attractive investment option, and thus draw in capital. By thus making biotech commercially viable, the decision also spurred research in this area. Today biotech is a massive commercial enterprise. According to the accounting firm Ernst & Young, total revenues from US biotech firms in 2012 were $63.7 billion, and the total market capitalization of biotech firms was $360.3 billion. Commercial biotech firms do everything from use cellular processes to manufacture industrial chemicals, to create genetically modified foods, to explore treatments for diseases like cancer and HIV/AIDS.
The ethical issues here are legion. As an important part of the legal framework that makes commercial biotech posible, patenting of GMOs makes possible the commercialization of life and living processes. Industry advocates are often keen to point out the amazing possibilities for improving the human condition made possible by biotech; critics are equally keen to point out the potentially catastrophic risks. Beyond just the consequentialist risk/benefit calculations, doing something like using genetically engineered bacteria as a manufacturing tool raises serious questions about the relationship between human beings and the rest of the natural world, and, as the bioethicist Leon Kass put it in an excellent and controversial 1971 essay, potential medical innovations from biotech may well cause us to reevaluate our understanding of what it means to be human.
The implications of the decision in the Chakrabarty case were not lost on the man himself (incidentally, still alive and well, going strong and doing research at the University of Illinois, Chicago at the ripe age of 75). In some autobiographical reflections on his eponymous case, Chakrabarty noted: “…the Supreme Court decision on Diamond v. Chakrabarty appears to have gone beyond what the Supreme Court justices perhaps intended to grant. The subject of ‘who owns life?’ has therefore become a significant, timely, and dominant issue of our times.”