The Court of Customs and Patent Appeals ruled 3 to 2 yesterday that General Electric has the right to patent a new form of life created in its own laboratories -- a bacteria that eats oil more voraciously than any bacteria found in nature.
The decision is the first specifically authorizing a patent for a life form created, in the court's words, "by what is sometimes referred to as 'genetic engineering.'"
It reverses an earlier unanimous ruling by the Board of Patent Appeals that Congress never intended "live organisms" to be patentable.
Yesterday's ruling, accompanied by two strongly worded dissents, represents a potential gold mine for corporations involved in genetic engineering research.
General Electric officials said yesterday they had not been informed of the court's decision.
But the company attorney who argued their case before the court, Leo Malossi, said he thought it "fair" to say that if new life forms weren't patentable, there would be less incentive for private industry to spend money for the research to create them.
"There's quite a considerable investment," Malossi said. ". . . If we simply are going to be taking advantage of it, then maybe the government should sponsor it."
The ruling comes on the heels of an October decision in which the court, also by a 4 to 2 vote that reversed another unanimous ruling by the Board of Patent Appeals, allowed the Upjohn Co. to patent a type of microorganism which it had "purified," but had not genetically altered.
Yesterday's ruling referred extensively to the Upjohn decision, noting that in both cases ". . . the only asserted objection to their patentability is that the microorganisms are alive . . ."
Whether a live organism can be patented, yesterday's majority opinion said, was decided in the Upjohn case. The court noted that:
"We see no sound reason to refuse patent protection to . . . microorganisms themselves -- a kind of tool used by chemical manufacturers in much the same way as they use chemical elments, compounds and compositions which are not considered to be alive . . .
"The nature and commercial uses of biologically pure cultures of microorganisms . . . are much more akin to inanimate chemical compounds such as reactants, reagents and catalysts than they are to horses and honeybees, or raspberries and roses."
The new General Electric bacterium was developed by Indian microbiologist Ananda M. Chakrabarty, who started his research in the late '60s at the University of Illinois, and finished it in GE's central research center in Schenectady, N.Y.
Chakrabarty, who hopes to become an American citizen in May, a month after his 40th birthday, said he developed the new bacterium to fight oil spills, but doesn't know yet how effective it will be because so far it's only been tested in a laboratory.
He said he used a strain of bacterium called Pseudomonas, which is normally able to consume only a few of the chemical compounds in oil.
He altered that strain by implanting bits of new genetic code material from other strains of bacteria. The new genetic material, which is automatically reproduced whenever the bacterial cells divide, enables the altered strain to consume "about 60 per cent of the oil," he said.
Chakrabarty said his bacteria break oil down into water and carbon dioxide. And because they multiply rapidly when feeding on oil, they also increase the amount of protein in the water, "because the bacteria is 75-80 percent protein."
Aquatic animals eat protein, he said, "So what you're doing is very useful to marine life."
Until Congress authorized patents for some varieties of asexually reproduced plants in 1930, patent officials had rejected all industry requests to patent forms of life.
Chief Judge Howard T. Markey yesterday rotein now nrignicoicpora nyl YES. terday wrote in a concurring opinion:
"The sole issue before us is whether a man-made invention . . . is unpatentable because, and only because, it is alive . . .
"There are but two sources for manufactures and compositions of matter. They are God (or 'nature' if one prefers) and man. A spresented to us, the invention is admittedly a 'manufacture' by man. It therefore falls squarely within the language of the statute."