DNA As Information. “Synthetic Genome” Paper Brings New Life To Old Debate

In the landmark paper by Gibson, Smith, Venter et al, Science Express (May 20, 2010), reporting the successful replacement of one bacterial genome by a completely synthetic, functional chromosome,  the authors note: “This work provides a proof of principle for producing cells based on genome sequences designed in the computer. DNA sequencing of a cellular genome allows storage of the genetic instructions for life as a digital file.” But is the file patentable? In her introduction to the paper in Science, 328, 958 (May 21, 2010) Elizabeth Pennisi employs a software analogy as well when she describes how the group overcame early failures in getting the synthetic genome to function in its new home: “Like computer programmers debugging faulty software, they systematically transplanted combinations of synthetic and natural DNA, finally homing in on a single -base mistake in the synthetic genome.” [Note to file: At last, a patentable SNP!]

Analogies like these are going to re-awaken the debate about how to resolve the conflict between permitting patents of DNA molecules as tangible chemical entities (“An isolated, purified DNA molecule of SEQ ID NO:!”) and permitting patents on DNA sequences as information storage media (e.g., “A computer readable medium having recorded thereon the nucleotide sequence depicted in SEQ ID NO:1”).   In “Locating Gene Patents within the Patent System”, American J. Bioethics, 2, 18 (2002), Arti K Rai concluded:

 “Given that in the future the primary usefulness of DNA sequences may lie in their in silico (as contrasted with in vitro) representations, limiting patents to the biological molecule may inappropriately curtail the scope of protection available in drug development. By the same token, if we are going to allow widespread patenting of information in computer readable form-as we have apparently decided to do -the need for some type of fair use law becomes even more important.”

Ms. Rai’s article was one of a series of solicited “Open Peer Commentaries” (including one by me) on a longer article by Rebecca S. Eisenberg in the same issue, “How Can You Patent Genes?” The Myriad lawsuit and Bilski v. Kappos must have been visible in her tea leaves when she wrote the introduction: “The patenting system has built for a ‘bricks and mortar’ world rather than an information economy. The fact that genes are both material molecules and informational systems helps explain the difficulty that the patent system in going to continue to have.”

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