A federal patent appeals court ruled yesterday that an industry can patent and own certain forms of life it develops. The cautious decision could have sweeping effects on the scientific and business communities.
The ruling by the U.S. Court of Customs and Patent Appeals allows the Upjohn Co., the pharmaceutical manufacturer in Kalamazoo, Mich., to patent a type of microorganism known as streptomyces vellosus that the company uses to produce an antibiotic called lincomycin.
The court's 3-to-2 ruling in favor of Upjohn opens the way for a broad spectrum of food and drug manufacturers who work with microorganisms to claim new forms of life they develop as their own.
The ruling could also affect scientists seeking to develop new types of life in the laboratory by tinkering with DNA (deoxyribonuclelc acid), one of the basic building blocks of life. Some scientists and politicians have expressed fears that DNA research may create genetic monstrosities or new diseases, but others see the research as an opportunity to produce new forms of drugs and food plants.
Before yesterday's decision the only forms of life which could be patented were certain plants and seeds which fall under the federal Plant Patent Act of 1930.
All other requests by industries to patent life forms they develop had been rejected by patent officials as not conforming to the patent law categories. The categories are defined in the law as "any new and useful process, machine, manufacture or composition of matter, or any new and useful improvement thereof."
In its decision yesterday the appeals court rejected the argument of a lower patent board that since microorganisms are alive they cannot conform to the agency's legal catagories.
At present Upjohn and other companies place newly developed strains of microorganisms into a "bank" where any other firm can withdraw them and use them if it wishes.
"Microorganisms have come to be important tools in the chemical industry, especially the pharmaceutical branch thereof," said the court. "And when a new and useful tangible industrial tool is invented . . . we do not see any reason to deprive it or its creator or owner of the protection and advantages of the patent system."
The court called "far-fetched" fears expressed by the lower patent board that its ruling could open up patent attempts for new and useful species of plants, animals and insects created by man. But the ruling did not totally rule out such patents.
Patent law experts here yesterday declined to speculate on just how far the court's ruling throws open the door to private ownership of forms of life until they had a chance to study the ruling.
However, Upjohn officials were exultant, and said the effects of the ruling could be extremely far-reaching. "You are talking about some very big areas like foods and beverages and pharmaceuticals," said John Kekich, an Upjohn patent attorney, in a telephone interview from the firm's headquarters.
"If you can come up with new or different forms of life and they can be used in a manufacturing process, I think you could at least make a claim they fall within the statutory limits," Kekich said.
The Upjohn attorney noted, however, that the court took a deliberately cautius approach to its ruling. "It's a step in a whole new direction," said Kekich, "but I don't think there will be radical changes, at least for the present."