When a savvy inventor creates a new product, one of the first things that he or she often does is file a patent application for the invention. Patents are issued by the U.S. Patent and Trademark Office (USPTO) and provide a patent holder with property rights in the subject invention.
The patent process is lengthy, typically taking about two and a half years from receipt of the application to approval. If the patent is ultimately approved, it becomes effective from the date the application was filed, and the patent is good for 20 years.
Obtaining a patent, however, is never a sure thing, even for companies that hold hundreds or thousands of patents.
For example, J.M. Smucker Company found this out first-hand when they tried to patent the process of making their “Uncrustables” ready-made peanut butter and jelly sandwiches. The U.S. Court of Appeals for the Federal Circuit rejected the company's effort to patent the process for making the pocket-size pastries.
Bacterium Patent in 1980 Broke New Ground
Patent applications for living things were historically rejected by the USPTO. However, in 1980, the U.S. Supreme Court upheld a patent for an oil-eating bacterium that was granted to genetic engineer Anada Mohan Chakrabarty, who was working for General Electric. This decision paved the way for future patents in biotechnology.
Can You Patent a Genetic Code?
In February 2005, Monsanto Company (Monsanto), a multinational agricultural and biotechnology company that holds patents on a variety of products, including biotech seeds, bred wheat, soy plants, and advanced traits and technologies for crops, sought a patent for a pig.
More specifically, they sought a patent on the lifespan of pigs that are bred using a natural selection method to produce animals that grow faster and produce more pork than their normally bred counterparts. But can you patent a combination of techniques that farmers may have been using for centuries?
Monsanto filed its pig patent application with the World Intellectual Property Organization (WIPO) in Geneva, Switzerland. The company claimed that it would specifically patent a gene marker for a pig trait, and sought ownership rights in more than 160 countries, including the United States. It sought to patent the methods behind this breeding as well as the eventual herds and offspring that would result.
Who Controls Genes?
The patent request was exposed by Greenpeace researcher Christoph Then, who monitors patent applications for the environmental advocacy organization and expressed concern with Monsanto's efforts to control genetic resources.
Monsanto's pig patent efforts triggered a firestorm of controversy about whether a company should be able to get patent protection for parts of the genetic materials of a pig. It even led to the production of a documentary called “Patent the Pig,” which detailed Monsanto's attempts to secure patent protection and the business of genetics.
Two years after the pig patent fracas, Monsanto sold Monsanto Choice Genetics to Newsham Genetics LC, a company based in West Des Moines, Iowa. This sale included all swine-related patents and patent applications, officially taking Monsanto out of the pig business. But the question still remains whether a company will be able to patent a breeding process that has been used for many years. Only time will tell.