For over 100 years, people have been patenting chemical compositions related to human products. On March 20, 1906, a purified form of adrenaline obtained the first patent of a human product. Several decades later, in 1980, the U.S Supreme Court case of Diamond v. Chakrabarty upheld the first patent on a newly created living organism – a bacteria for digesting crude oil in oil spills.
Since the ruling of Diamond v. Chakrabarty, the United States Patent and Trademark Office (USPTO) has issued several patents related to genetically modified organisms – such as bacteria, viruses, seeds, plants, cells, and non-human animals. Moreover, isolated and manipulated cells – even those that originate from humans – are patentable.
Can the Genetic Sequence of a Virus be Patented?
In June of 2013, the USPTO ruled that naturally occurring genes are not patentable. The ruling claims that even when isolated, naturally occurring genes are not patentable because they are a product of nature. This ruling also has implications for patents beyond human genes such as plant, animal, and microbial genes. Nevertheless, synthesized versions of such genes are subject to patent protection. If part of a gene is isolated or extracted from nature for the first time, has a characterizable sequence, and has potential for industrial exploitation, such gene and the process used to obtain it can be the subject matter of patent protection. For example, a DNA fragment designed via the use of a virus gene that is then synthesized and isolated to detect the cases of the disease is patentable.
What is the Coronavirus?
The term “coronavirus” is a classification of a variety of viruses in the same family. SARS, MERS, and SARS-CoV-2, also known as COVID-19, are all strains of a coronavirus. Thus, “coronavirus” refers to the general population of viruses within a family. Yet, each virus within the family also has an individual name and distinct properties. According to the Center for Disease Control and Prevention (CDC), the coronavirus family is named after the spikes that form a crown-like ring around the body of the virus. In fact, the term “corona” means “crown” in Latin. Since 1965, the CDC has identified seven coronaviruses that can infect humans. The first identified human coronavirus is the cause of the common cold.
Is There a Patent for Coronavirus?
Would you be shocked to know that there is a patent for a strain of the coronavirus? As of 2015, there is a patent for the “live attenuated” version of avian infectious bronchitis virus (IBV). IBV is an acute, contagious upper respiratory tract disease in birds and is in the same family as COVID-19. Live attenuated IBV refers to a weakened version of the virus, patented to develop it into a vaccine against the disease for birds and other animals.
Why Would Anyone Want to Patent a Virus?
The short answer is to have control. When granted a patent, an inventor holds the rights to the invention. These exclusive rights allow an inventor to profit from the discovery of the invention financially. Critics of those who patent viruses argue that companies and researchers who hold these patents are essentially benefiting from people’s suffering. These opponents are referring to companies who conduct research, create a vaccine, and then retain the profits for themselves.
On the contrary, some companies and researchers apply for patents on viruses to prevent others from the behavior above. Various government and research entities submit patents for viruses to study the vaccines and detection methods of previous strains. These organizations believe in sharing the information of the patent in hopes of finding a cure. An example of such altruistic behavior was seen in 2013 when a group of Dutch scientists received a patent for the MERS virus. The Dutch researchers claimed that they secured the rights to the virus to prevent others from obstructing access and announced they would forgo profits and share the isolated virus with other researchers for free. These researchers and others who share similar views understand that companies will not invest in finding remedies if they do not secure the intellectual property rights to their discoveries resulting from the original patent. The sharing of subsequential profits encourages companies to be more willing to invest in the discovery of cures.
What are the Adverse Effects of Patenting a Virus?
The most readily negative effect of patenting a virus is the optics. Many people perceive virus patenting as capitalizing on the suffering of others. In the social media-driven world of today, opinions can tarnish the reputation of a company. Regardless of how strange, misleading, or frivolous they may be, the voices of strangers on the internet fuel the conversation of pundits in the media.
Can your company withstand the backlash of tens of millions of people criticizing your actions, boycotting your products, or perceiving you to be a killer? Is your public relations team ready for such a battle?
Moreover, another problem arises when two competing entities own patents for similar items.
For instance, Group A may hold a patent for a specific strain of the virus (strain A), while Group B holds a patent for a vaccine proven to cure a similar strain (strain B). It will benefit Group A to know if Group B’s vaccine can cure strain A of the virus, but they may not be willing to share data with an opposing group to secure the profits for themselves. Thus, Group B will not be willing to invest millions of dollars into research and testing if they know they will not receive any profits from Group A.
This basic example features two groups; however, what if the competitors were two nations where patent laws may differ significantly from each other?
IPS Legal Group P.A is Ready to Help You
What You Need to Know
Conclusively, contrary to public perception, owning a patent for a virus is not a new or utterly nefarious decision. However, obtaining a patent for a virus is a tedious, time-consuming, and complicated process that requires a knowledgeable and skilled patent attorney who understands the process.
For more information, Contact IPS Legal Group, P.A.
Disclaimer: This blog is not intended to be a substitute for legal advice or instruction. Every legal question calls for a different legal answer, and the above might not apply to your situation. Contact IPS Legal Group, P.A. today to discuss your unique patent application needs.
- “Diamond v. Chakrabarty :: 447 U.S. 303 (1980) :: Justia US Supreme ….” https://supreme.justia.com/cases/federal/us/447/303/. Accessed 2 Feb. 2021.
- “What are GMOs? Purdue Agriculture.” https://ag.purdue.edu/GMOs/Pages/WhatareGMOs.aspx. Accessed 2 Feb. 2021.
- “U.S. Supreme Court Rules On Gene Patents | Popular Science.” 13 Jun. 2013, https://www.popsci.com/science/article/2013-06/us-supreme-court-rules-breast-cancer-genes/. Accessed 2 Feb. 2021.
- “7 Takeaways From Supreme Court’s Gene Patent Decision.” 15 Jun. 2013, https://www.nationalgeographic.com/news/2013/6/130614-supreme-court-gene-patent-ruling-human-genome-science/. Accessed 2 Feb. 2021.
- “Naming the coronavirus disease (COVID-19) and the virus that ….” https://www.who.int/emergencies/diseases/novel-coronavirus-2019/technical-guidance/naming-the-coronavirus-disease-(covid-2019)-and-the-virus-that-causes-it. Accessed 2 Feb. 2021.
- “Coronavirus History: How did coronavirus start? – WebMD.” 15 Apr. 2020, https://www.webmd.com/lung/coronavirus-history. Accessed 2 Feb. 2021.
- “Viral image about patents for viruses is misleading – Full Fact.” 24 Feb. 2020, https://fullfact.org/health/us-patents-on-viruses/. Accessed 2 Feb. 2021.
- “Infectious Bronchitis in Poultry – Poultry – Merck Veterinary Manual.” https://www.merckvetmanual.com/poultry/infectious-bronchitis/infectious-bronchitis-in-poultry. Accessed 2 Feb. 2021.
- “How Biological Patents Promote Research And Save Lives | Popular ….” https://www.popsci.com/science/article/2013-07/how-biological-patents-promote-research-and-save-lives/. Accessed 2 Feb. 2021.
