Patent Application for Synthetic Bacterium Raises Concern

On May 31, 2007, the USPTO published Venter Institute's U.S. Patent application number 2007/0122826 for "Minimal Bacterial Genome". The significance of the application is that the invention described is the world's first-ever human-made species, a "free-living organism that can grow and replicate". Appropriately named "Synthia", the species is made entirely with synthetic DNA from the laboratory. The application also has some groups up in arms about the potential ramifications should the PTO grant the patent.

The ETC group petitioned the PTO and WIPO to reject the patent on the grounds that granting patent rights to Venter is contrary to public morality and safety. ETC worries about the accidental or intentional release of the microbe into the environment and cautions about the possibility to harness the microbe and create a virulent pathogen. Other biologists oppose the privatization of synthetic life forms and suggest that a commercial race to claim property rights to the same would result from granting the patent. Further, ETC advocates "open source" biology – where the components of what is known in the field should be freely accessible to other biologists to conduct research.

On the other hand, Venter claims that the bacterium is the key to cheap energy production, as the claimed bacterium has the potential to make hydrogen and ethanol. Part of the research was funded by the U.S. Department of Energy, and the U.S. government will hold certain rights to the patent, if granted. Venter further contends that, in a business sense, patent rights should be granted for a bacterium that produces fuel, eventually leading to the world’s first multi-billion dollar organism.

Section 101 of Title 35 U.S.C. details subject matter that is patentable, including any new and useful process, machine, manufacture or composition of matter. While not specifically addressing synthetic DNA, the Supreme Court in Diamond v. Chakrabarty, in a 5-4 decision, held that a living, man-made micro-organism is patentable subject matter as a "manufacture" or "composition of matter" within the meaning of the Patent Act of 1952. The patentability of a man-made bacterium composed of synthetic DNA lacks precedent, and the PTO likely faces a tough decision as to whether the subject matter is patentable.